Wednesday, November 30, 2011

Ind. Decisions - "Court clears Ogden Dunes for deer cull"

VALPARAISO | Officials in the small lakefront community of Ogden Dunes received the green light Wednesday afternoon to go ahead with a deer cull.

Porter Superior Judge Roger Bradford dismissed a request by opponents to delay the cull until after a Dec. 29 hearing challenging the town's cull permit before an administrative law judge of the Indiana Natural Resources Commission.

Bradford said he does not have the jurisdiction to step in at this point because the opponents have not exhausted all their administrative remedies by making their plea directly to the authority issuing the permit through the Indiana Department of Natural Resources.

Opponents attending the court hearing were left confused by the ruling, saying there is no procedure in place for them take action before the Dec. 29 hearing.

"I think it's a sad statement the due process of the law was cut short," said Dona Young.

Town Council President Bill Gregory, who along with members Eric Kurtz and Brad Wood have formed a slim majority on the council in favor of the cull, said Wednesday residents would be notified before any hunting begins.

A majority of town residents surveyed in January opposed the cull.

Attorney Charles Parkinson, who argued Wednesday on behalf of the town's cull, accused opponents of delaying the process.

I find the Hopper rehearing opinion disheartening. The original opinion imposed a minimal burden on trial courts, which has now been abandoned -- because a new guy is on the court.

Well, that got my attention and I asked IU-Indy law professor Joel Schumm for his thoughts on the import of yesterday's Supreme Court ruling on a petition for rehearing in the case of Hopper v. State, wherein a Sept. 28, 2010 3-2 opinion authored by now-retired Justice Boehm was turned around: the two remaining justices in the majority in the 2010 opinion become dissenters yesterday, and the two dissenters joined the majority. From Prof. Schumm:

The announcement of the Boehm retirement last summer brought headlines like: “Judge’s retirement means likely political swing on state Supreme Court.” But this has not borne out on a court that rarely divides along partisan lines. Of the 76 criminal and civil opinions decided in Justice David's first year, 53 were unanimous and the most common 3-2 alignment was Chief Justice Shepard/Justice Sullivan/Justice David (in five cases).

The trio joined in notable cases including the much-discussed Barnes opinion and the recent certiorari grant, Armour v. Indianapolis. Chief Justice Shepard/Justice Dickson/Justice David (the three justices appointed by Republican Governors) aligned in only two 3-2 opinions: Nicoson v. State and Sloan v. State.

Todays' Hopper opinion is just the third opinion with the 3-2 partisan alignment, but is unique because it involves reversal of a 3-2 opinion that pitted Democratic appointees against Republican ones, written in Justice Boehm's final days on the court.

This may well be a one-off; I don't know of any other pending cases where rehearing was sought from a 3-2 opinion in which Justice Boehm was in the majority. But the takeaway for some lawyers may be to argue for overruling other 3-2 precedents based on the change in court membership. As Justice Rucker's dissent in Hopper points out: the rehearing opinion "entertains and effectively grants the State's petition even though the State's claim is that this Court's original opinion was wrongly decided."

In Michigan, some precedents have gone back and forth with the elections. Schumm points out that one can make the case that different facts call for a different result in individual cases. But a reversal on a rehearing opinion, unless the majority missed some important fact or case, is more striking. Continuing the Michigan comparison, he points to one example of a shift on rehearing where, per this AP report: "... conservatives reversed a six-month-old ruling by liberal justices." The AP report continued:

The Supreme Court issued a completely different opinion in late December, just before Democrats lost their 4-3 majority. Republicans agreed to reconsider the case when they took control of the court.

"Instead of preserving precedent, this newly comprised majority reverses this court's previously issued opinion and issues its own opinion for no reason other than that it disagrees with the outcome of the prior opinion," said Justice Diane Hathaway in a dissent.

Mayor-Elect of Greenwood Mark Myers wants more money from city courts to come back to the city. Of the $1.1 million dollars collected by the court last year, the city kept less than a fifth of it. Most of the money goes towards state and county records program. It costs the city $300,000 to keep up the courts.

Indianapolis - The ACLU of Indiana today filed a complaint on behalf of a United States citizen who was erroneously and unconstitutionally detained at the direction of federal agents in anticipation of possible deportation.

Victor Jimenez is a naturalized United States citizen. After being arrested late in the evening on August 28, 2010, for a violation of Indiana law, Jimenez was taken into custody in Indianapolis. He was eligible for bail almost immediately, but he could not be released, because on Aug. 29, federal immigration agents from Immigration and Customs Enforcement (ICE) issued an immigration detainer, which had the effect of requiring that Jimenez be held pending possible immigration proceedings and deportation.

The detainer was issued without probable cause or reasonable suspicion that Jimenez was in the U.S. illegally. Of course, a U.S. citizen cannot be deported. Jimenez, a U.S. citizen since 2000 residing in Marion County, had provided arresting officers with his Indiana driver's license, but found himself held for three days without bail at the Marion County Jail because of the ICE detainer. He was never given the opportunity to prove his U.S. citizenship to the ICE agents who were responsible for his continued detention.

As a result of his unlawful imprisonment, Jimenez, a married father of four, missed two days of work for which he was not paid, and was unable to accompany his wife, who was six months pregnant, to her medical appointment.

"The current political climate regarding immigration issues has created an environment where these situations occur all too often," said Gilbert Holmes, Executive Director of the ACLU of Indiana. "We don't want a repeat in Indiana of what's happening in some states, where they've passed laws allowing people to be stopped on the basis of looks, and where you're considered guilty until proven innocent."

"We are concerned about the lack of any procedures here to safeguard against what appears to be the clear deprivation of Mr. Jimenez's basic constitutional rights. No citizen, naturalized or otherwise, should have to worry about being deported." said Ken Falk, the ACLU of Indiana's Legal Director.

ICE is part of the U.S. Department of Homeland Security. Illegal detention violates a U.S. citizen's rights under the Fourth Amendment of the Constitution of the United States. The ACLU of Indiana is requesting a jury trial on behalf of Jimenez. The case was filed in the United States District Court for the Southern District of Indiana under cause number 1:11-cv-1582, and is captioned Jimenez v. United States.

Lesley Weidenbener in a special to the Evansville Courier & Press, reports in a long story that begins:

INDIANAPOLIS — A key Indiana legislator told a Congressional committee Wednesday that online retailers should be required to pay sales taxes on web-based purchases to help state budgets and reduce their advantages over so-called brick-and-mortar stores.

Sen. Luke Kenley, a Noblesville Republican who chairs the state Senate Appropriations Committee, said that big and small businesses alike should collect taxes, whether the purchases takes place on Main Street or online.

But members of the U.S. House Judiciary Committee on Wednesday had questions about the practicality of forcing businesses to collect the tax, the affect [sic.] that might have on prices, and whether small online firms should be exempted. Still, some lawmakers acknowledged that online sales are growing so quickly that they may need to act.

“I don’t think Congress should be in the business of picking winners and losers and inaction by Congress today results in a system with winners and losers,” said U.S. Rep. Mike Pence, an Indiana Republican and member of the Judiciary Committee.

Kenley traveled to Washington D.C. to speak to the Judiciary Committee not only as a fiscal leader in Indiana but also as chairman of the Streamlined Sales Tax Governing Board, which is national effort to simplify state and local state laws so that the sale tax can be more easily collected online.

He said the streamlined tax effort makes it cheap, efficient and easy for online retailers to collect the tax, just as brick-and-mortar stores already do.

Environment - More on: Former IDEM Air Chief goes to Washington

Updating this ILB entry from Oct. 29, 2009, here is a clip from The Hill's Oversight about a hearing taking place today in DC:

State of play: A top Environmental Protection Agency official will face off Wednesday with industry officials who have raised concerns that pending air-pollution rules will threaten power grid reliability by forcing the closure of a slew of power plants.

Janet McCabe, principal deputy assistant administrator for air and radiation at the EPA, will speak at the second day of the Federal Energy Regulatory Commission's (FERC) conference on the effect of EPA regulations on reliability.

EPA has strongly defended its pending power plant air-pollution rules against Republican claims that they could place a heavy strain on the electric grid.

Ind. Decisions - Supreme Court decides one today

When a defendant is represented by a lawyer for a particular offense, do the police violate his right to counsel if they approach him about a different offense? Under the Sixth Amendment, the answer is no. We hold that under the broader protections of Article 1, Section 13, of the Indiana Constitution, the right to counsel is violated only where the different offense is inextricably intertwined with the charge on which counsel is already representing the defendant. Nevertheless, we affirm the judgment of the trial court.

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

Appellant-Defendant, James E. Rogers (Rogers), appeals his conviction and sentence for failure to register as a sex or violent offender, a Class D felony, Ind. Code § 11-8-8-17(a)(5), as well as his sentences for theft, a Class D felony, I.C. § 35-43-4-2(a), and receiving stolen property, a Class D felony, I.C. § 35-43-4-2(b). We affirm.

Rogers raises two issues on appeal, which we restate as follows: (1) Whether his conviction pursuant to a guilty plea violated the Indiana constitutional prohibition against ex post facto laws; and (2) Whether the trial court's sentence was appropriate in light of the nature of Rogers' offense and his character. * * *

[W]e decline to create an exception to the rule that a defendant who pleads guilty pursuant to a plea agreement may not challenge his conviction on direct appeal. We conclude that Rogers waived his ex post facto claim when he entered into a plea agreement with the State. * * *

Conclusion. Based on the foregoing, we conclude that (1) Rogers waived his claim that his conviction violated the Indiana constitutional prohibition against ex post facto laws; and (2) the trial court properly sentenced Rogers. Affirmed.

From In re Earhart, a 2-page disciplinary order of the Supreme Court dated Nov. 22, 2011:

In 2008, Respondent was retained and paid $10,000 to represent an Indiana client
against whom criminal charges were anticipated. Respondent sent a letter to the client
confirming receipt of "the initial fee of $10,000," and stating that an additional fee of $10,000
would be charged to represent him through trial if criminal charges were filed. His letter referred
to the initial fee as a "non-refundable retainer." A few days later, the client killed himself, and
Respondent was promptly notified. Respondent had performed no more than five hours of work
on the case. The client's widow requested a refund of the unearned portion of the $10,000.
Respondent refused, asserting that he had earned the entire amount. * * *

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.5(a): Charging an unreasonable fee.

1.16(d): Failing to refund an unearned fee upon termination of representation.

Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning December 29, 2011.

In re Loiseau is a 3-page order that the results in the attorney being suspended "for a period of not less than 90 days, without automatic reinstatement, beginning December 29, 2011." From the opinion:

Mitigating and aggravating circumstances. The Court finds no facts in mitigation. In aggravation, we find: (1) Respondent received a public reprimand for other misconduct, see Matter of Loiseau, 776 N.E.2d 1209 (Ind. 2002); (2) Respondent has engaged in a pattern of dishonesty; and (3) Respondent is not remorseful and is unwilling to accept responsibility for his actions. Particularly disturbing is Respondent's apparent willingness to damage a vulnerable former client's case in her immigration proceeding by swearing to salient facts he now contradicts—that he informed her of the May 1997 Hearing and she was totally at fault for missing it.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules by engaging in the following misconduct:

1.3: Failing to act with reasonable diligence and promptness when he failed to appear for two hearings in S.G.’s deportation proceedings.

1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter when he failed to keep S.G. informed about the results of the Motion to Reopen.

3.3(a)(1): Knowingly making a false statement of fact to a tribunal when he told an immigration judge that S.G. had a pending asylum application before a different judge.

8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation when he made false representations to the immigration court.

In March, the Federal Judicial Center put out a 52-page report that seemed to minimize the effects of Twombly and Iqbal. The study of motions activity in 23 federal districts, undertaken at the behest of the Judicial Conference's advisory committee on civil rules, found that there was an increase in the rate of motion-to-dismiss filings in the wake of the two rulings, but also found no general increase in the rate at which federal judges granted motions to dismiss with prejudice. "There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case," the report said.

But a forthcoming Yale Law Journal note by a second-year Yale Law student suggests that Twombly and Iqbal commentators haven't been making the right comparisons. And this isn't just any law student: Jonah Gelbach is an economics professor who spent 12 years on the faculty at the University of Maryland and the University of Arizona. In the paper, a version of which Gelbach presented earlier this month at the Conference on Empirical Legal Studies, the econometrician argues that a simple comparison of dismissal rates isn't the proper way to evaluate the impact of Twombly and Iqbal.

Ind. Courts - Judge rules the school corporation itself cannot be held criminally responsible for failing to report sex abuse

LAPORTE | Charges have been dismissed against the LaPorte Community School Corp. but criminal cases against two school officials on allegations involving a coach and player having sex are still moving forward.

"We're disappointed but we kind of expected it," said LaPorte County Prosecutor Robert Szilagyi on Tuesday.

LaPorte Superior Court 3 Judge Jennifer Koethe ruled Wednesdays in favor of a motion by the defense to dismiss a Class B misdemeanor charge of failure to report against the school corporation.

Prosecutors alleged the school corporation should be held criminally responsible for LaPorte High School Athletic Director Ed Gilliland and LaPorte High School girls volleyball coach Mary Beth Lebo not reporting sexual abuse between an assistant coach and player to the proper authorities. * * *

During a Nov. 2 hearing, school corporation counsel Martin Kus said governmental entities cannot be held criminally liable for the actions of its employees under a 2005 decision by the Indiana Supreme Court.

Prosecutors argued the high court ruling applied to civil cases.

And, prosecutors specifically pointed to a criminal statute governing public or private institutions and failure of its employees to report acts such as child abuse.

Szilagyi argued the school corporation was a public institution and, therefore, its actions came under scrutiny of the law.

However, Koethe in her written decision ruled there is nothing specific in the Indiana criminal statutes that clearly allows a school corporation or any other governmental entity to be charged with a crime.

She also pointed to the 2005 Indiana Supreme Court decision involving a case against the Brownsburg Community School Corp.

In that case, the justices ruled, "We have found no criminal code in this country that imposes criminal liability" on a governmental entity.

"The state's arguments in this matter are unconvincing," said Koethe in making her decision.

Last week La Porte County Superior Court Three Judge Jennifer Koethe granted the school’s motion to dismiss charges it allegedly failed to report instances of child abuse in the case of former volleyball coach Robert Ashcraft, who was sentenced for sexual relations with one of his underaged players.

The dismissal was based on case law that bars the state from pressing charges against other governmental entities.

The motion was filed by defense attorneys David Jones and Martin Kus, who argued that government entities couldn’t be charged with a crime by the state.

The state, in turn, argued that the school corporation was an exception to this rule since it wasn’t sovereign and couldn’t make laws or ordinances.

But Koethe’s order for dismissal didn’t agree.

After acknowledging that there were no cases where a governmental entity was charged with a violation of a criminal statute, the order said there were two cases where the entities were charged with civil crimes. And these were both shot down, one by the appellate court and the other by the state supreme court.

The Indiana Supreme Court said “state law also finds the concept of a crime by the sovereign to be an alien notion.”

“The state’s arguments in this matter are unconvincing based upon the clear direction provided by the Indiana Supreme Court,” Koethe said in the order.

“We think she came to the right decision,” said defense attorney David Jones. “We don’t think there was any legislative intent for the state of Indiana to prosecute another government entity such as the school corporation. One part of the government can’t bring a charge against another part of the government.”

But La Porte County Prosecuting Attorney Bob Szilagy said the prior cases used in this decision weren’t really apt to the current prosecution.

“They involved civil action for punitive damages not criminal actions,” he said. “Generally they (the school corporation) could be charged based on the statute of the charges, which specifically referred to public and private institutions.”

State statute 35-41-2-3 allows a corporation to be charged with a crime if the offense was committed by its agent acting within the scope of his authority, and employees Mary Beth Lebo and Ed Gilliland were acting within the scope of their authority when they didn’t report the alleged crimes.

“I know she researched it well and did what she thought was required by the law,” he said,

Jones said the case against the school corporation was over.

Szilagy said this outcome doesn’t change the case against the corporations employees Lebo and Gilliland, who are also being charged with allegedly failing to report child abuse. They were the varsity volleyball coach and athletic director, respectively.

Koethe didn’t rule on the arguments of the defense, which included the prosecution missing the statute of limitations and the corporation not being an individual who could be charged with a crime.

“The La Porte Community School Corporation is pleased that the single criminal charge against it has been dismissed,” said defense attorney Martin Kus. “Judge Koethe’s reasoned opinion relied upon well established case law from the Indiana Supreme Court and Indiana Court of Appeals. Those cases clearly support the School Corporation’s position that there was no basis for filing the criminal charges against it.”

Tuesday, November 29, 2011

Ind. Courts - More on "An Illinois Court Weighs in on the Protection of Anonymous Internet Message Board Speech"

Updating this ILB entry from earlier today as it relates to an Indiana case on protecting the anonomity of Indianapolis Star commentors, In re Indiana Newspapers, scheduled for oral argument before the Indiana Court of Appeals on Monday, Dec. 12, 2011, the ILB overlooked mentioning Star Editor Dennis Ryerson's opinion piece in this Sunday's Star.

Ryerson writes that starting Tuesday, Nov. 27th, comments on Star stories will no longer be anonymous. Indeed, the only way to submit comments will be through your Facebook account. From the article:

For several years we have allowed users of Indy Star.com, our main news website, to provide their comments with stories we post. Our intent was to use the Internet to provide immediate reader comment as stories were breaking.

Unlike our signature requirements for letters to the editor, we have allowed anonymous comments on IndyStar.com. Our theory was that robust conversation would promote more conversation and that we should not restrict the openness of the worldwide web.

It didn't work as intended, which is why, beginning Tuesday, we will be moving all story comment to the Facebook social network site.

We're doing this because along with anonymity has come an unacceptable level of hatred, crude language and other nastiness. * * *

Several newspapers have "beta" tested Facebook comments and universally found that tying comments to a person's Facebook identity promotes civil discourse. An ambitious study by the Los Angeles Times allowed readers to post comments anonymously while other readers were directed to Facebook. The latter significantly reduced name-calling and other bad behavior.

ILB: Although this is Tuesday, the Facebook comment system is not yet in operation on the Star site. It is in operation on the DesMoines Regster site. Here is their FAQ.

It seems you have to be registered with Facebook not only to comment, but even to read others' comments. Those of us who do not care to sign up with Facebook are out-of-luck. I will miss the ability to read the comments in the Sports section, but not enough to join Facebook.

Natalie A. Miller, individually and as administratrix of the estate of Alexis J. Ritch, deceased; Christian J. Miller, a minor, by and through his mother and next friend Natalie A. Miller; and Daniel J. Ritch, individually (collectively, “Plaintiffs”), appeal the trial court’s entry of summary judgment to Morton Grove Pharmaceuticals, Inc. (“MGP”) and CVS Pharmacy, Inc. (“CVS”) (collectively, “Defendants”). Plaintiffs raise three issues for our review, which we reorder and restate as: 1) whether the trial court erred in excluding the testimony of Dr. Kevin Loeb; 2) whether Defendants were entitled to the statutory rebuttable presumption that Promethazine Syrup Plain was not manufactured defectively, and if so whether Plaintiffs failed as a matter of law to rebut the same; and 3) whether Alexis’s death was not caused, as a matter of law, by MGP’s production and CVS’s distribution of Promethazine Syrup Plain. On cross-appeal, Defendants request we review whether the trial court erred in denying their motion to exclude other expert testimony in support of Plaintiffs.

We conclude that 1) the trial court erred in excluding the testimony of Dr. Loeb; 2) Defendants were entitled to the statutory rebuttable presumption of no defect, but whether Plaintiffs have rebutted this presumption remains a question of fact; and 3) whether MGP’s production and CVS’s distribution of Promethazine Syrup Plain caused Alexis’s death is also a question of fact. We further conclude that the trial court did not err in denying Defendants’ motion to exclude other expert testimonies in favor of Plaintiffs. Accordingly, we reverse in part, affirm in part, and remand.

Darnell Daniels v. State of Indiana - "There is sufficient evidence to support Daniels's conviction for Class B felony robbery as charged. There also is sufficient evidence to support Daniels's conviction for Class C felony intimidation for “using” a gun, and any variance between the charging information and proof at trial was not fatal. We affirm."

In State of Indiana v. Jaime Bonilla, a 6-page opinion by Judge May, the COA addresses, for the second time in two days, the question of ineffective counsel "for failing to advise [that a] guilty plea might have immigration-related consequences." Unlike Manuel Trujillo v. State of Indiana, decided yesterday by a different panel, in this case the trial court had granted relief on that basis. The COA reverses.

D.L., by his next friend G.L. (“Mother”), appeals the trial court’s denial of his request to overturn his expulsion from Pioneer High School. D.L. claims his due process rights were violated during his administrative hearing. We affirm. * * *

None of D.L.’s arguments contain citation to relevant case law. Instead they are bald assertions of error without legal reasoning therefor. Accordingly, he waived these for failure to support the claims with “citations to authorities [and] statutes” in violation of Ind. Appellate Rule 46(A)(8)(a), and we decline to address them.

As D.L. has not demonstrated the trial court’s decision upholding his expulsion was contrary to law, we affirm its decision.

10:30 AM - David Hopper v. State of Indiana (13S01-1007-PC-399) - Hopper pleaded guilty to operating a vehicle while intoxicated, and later petitioned for post-conviction relief on grounds he had not been adequately advised on waiving his right to counsel incident to the plea negotiations. The Crawford Circuit Court denied relief, the Court of Appeals reversed, and this Court held that certain advisements should be given. Hopper v. State, 934 N.E.2d 1086 (Ind. 2010). The State has petitioned for rehearing.

ILB: This will be interesting. ILB readers likely will recall the Sept. 28, 2010 3-2 opinion in David Hopper v. State of Indiana, where then-Justice Boehm wrote the majority opinion, and CJ Shepard wrote an impassioned dissent [joined by J.Dickson]. Now J. Boehm has retired and been replaced by J. David, and the Court will hear argument on a petition for rehearing. The ILB wrote about this in more detail in a Jan. 22, 2011 entry.

Today, in David Hopper v. State, a 21-page, 3-2 decision on a petition for rehearing, Chief Justice Shepard writes, now for the majority:

Appellant David Hopper has been seeking to set aside a 2005 conviction for driving while intoxicated, on grounds that he had not been advised or warned of the risks of dealing with prosecutors without a lawyer. We earlier affirmed the trial court‘s denial of his petition for post-conviction relief.

The Attorney General has petitioned for rehearing, arguing that the rule announced in our prior opinion presents an unnecessary and impractical deviation from precedents established by the U.S. Supreme Court, and that it is unsupported by public policy. We grant rehearing to address the role and necessity of such advisements. * * *

III. The “Hopper Advisement” [p. 14]

This brings us, finally, to the rule announced in our prior opinion. The Court of Appeals had pointed out that counsel "should be better equipped to plea bargain with a prosecutor than a layperson." Hopper, 925 N.E.2d at 504. We, in turn, required that a defendant be advised "that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution‘s case." Hopper, 934 N.E.2d at 1088. One can acknowledge the correctness of that statement and yet not conclude that an advisement along these lines need be mandatory. * * *

Hopper himself may be the best illustration of why the totality of the circumstances approach serves better than the per se rule. He claims only a lack of an advisement. He does not articulate any negative impact or particularized prejudice. He makes no argument of injustice or innocence. He certainly never says, 'I didn‘t do it.' In fact, counsel acknowledged that this sort of attack would best suit those who are (like Hopper) guilty, but seek to have those convictions set aside to prevent facing habitual or repeat offender charges. Hopper never offers evidence that he would have received a better deal with advice of counsel or that he would have accepted counsel if the judge had told him that lawyers were so much better at plea bargaining.

Hopper thus urges adoption of the per se approach to the warning we earlier mandated and understandably expresses surprise that the advisement was deemed so important that mandating it was thought necessary, but not so important as to warrant granting relief to the defendant who filed the appeal.

In contrast to the per se rule, the totality of the circumstances test asks more searching questions. Was the defendant‘s decision to forgo counsel or to intelligent? Taken as a whole, did the encounter afford a defendant due process, or was it seriously unfair in some respect?

We expect that judicial inquiries about such questions, by both trial and appellate judges, will be as fulsome as each situation requires to separate just results from unjust results. Looked at this way, an offender like Hopper, who lifts up no misstep in his earlier conviction save a warning about the valuable help of lawyers, makes no case for relief. On the other hand, a defendant like Tim Hood, who was threatened by a prosecutor with habitual offender charges unless he waived counsel, should get relief whether the court gave him an advisement or not.

While we do not doubt the value of the Hopper advisement‘s language in particular stages of particular cases with particular defendants, the notion that such language should be mandatory in all stages of all cases with all defendants is misplaced. "'Matters of reality, and not mere ritual, should be controlling.'" Id. at 904 (quoting United States v. Frazier, 705 F.2d 903, 907 (7th Cir. 1983)).

Conclusion

Accordingly, we affirm the judgment of the post-conviction court.

Dickson, and David, JJ., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs. [some quotes] At the outset I observe that although declaring a rehearing petition "must . . . go beyond a mere assertion that the original ruling was erroneous,' Slip op. at 4 (citing Griffin v. State, 763 N.E.2d 450-51 (Ind. 2002)), the majority nonetheless entertains and effectively grants the State‘s petition even though the State‘s claim is that this Court‘s original opinion was wrongly decided. In fact the State initially sought transfer from a divided opinion of the Court of Appeals which held that Hopper was entitled to an advisement on the desirability of consulting an attorney before pleading guilty. See Hopper v. State, 925 N.E.2d 499 (Ind. Ct. App. 2010). In seeking transfer the State complained about the perils and pitfalls inherent with such an advisement. We granted transfer. And although granting Hopper himself no relief – a matter I touch upon below – we agreed with the Court of Appeals‘ general proposition. The State now seeks rehearing making essentially the same arguments it made before. Nothing has changed. Under these circumstances alone, this Court should deny the petition for rehearing. * * *

I am hard pressed to understand why the majority apparently thinks it is a bad thing or otherwise inappropriate simply to provide pro se – and likely indigent – defendants with such a modest advisement as: "an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution‘s case." * * *

In the end I would deny the State‘s petition for rehearing, and reaffirm our original opinion in this case. Therefore I respectfully dissent.

Julie Hilden has posted a long article for Justia's Verdict - some quotes:

When you post an anonymous message on an Internet message board, how anonymous is it, really? A November 17 decision from an Illinois appellate court addresses that very question.

The Illinois case arose from a number of 2009 message board postings on the website of a newspaper, the Daily Herald. * * *

Lisa Stone then filed a defamation suit on Jed’s behalf. During the course of the suit, she attempted to ascertain the identity of Hipcheck16 through a subpoena to his Internet provider, Comcast. However, the trial court properly ordered Comcast to first let Hipcheck16 know that his identity was being sought, so that he could fight the subpoena if he so chose. And Hipcheck16 did, indeed, fight the subpoena, on First Amendment grounds.

The trial court nevertheless ruled against Hipcheck16, ordering him to reveal his identity. However, the trial court apparently stayed its order, to give the Illinois appellate court the chance to consider this important free speech issue.

Here is the Nov. 17, 2011 Illinois Appellate opinion in Lisa Stone v. Paddock Publications.
An Indiana case on protecting the anonomity of Indianapolis Star commentors, In re Indiana Newspapers (49 A 02 - 1103 - PL - 00234), is scheduled for oral argument before the Indiana Court of Appeals on Monday, Dec. 12, 2011, before a panel of Judges Friedlander, Darden and Vaidik. For background, start with this ILB entry from July 9, 2011.

Ind. Law - Has IU Indy Law found its angel benefactor?

BLOOMINGTON, Ind. -- Indiana University President Michael A. McRobbie today (Dec. 4) announced the naming of the Indiana University School of Law-Bloomington in honor of Indianapolis business and community leader Michael S. "Mickey" Maurer, J.D. '67.

The school will be renamed the Michael Maurer School of Law in recognition of Maurer's longtime support for the school and his $35 million gift for law student scholarships. The scholarships will be known as the Michael and Janie Maurer Scholarships.

Now a "Landmark Announcement" about the future of the IU Indy School of Law has been set for Thursday, December 1 at IU-Indy School of Law, Inlow Hall, 1:30 pm.

In attendance will be the Trustee of Indiana University, President McRobbie, Chancellor Bantz, IU-Indy Law Dean Roberts, and IU Foundation President Tempel.

The Indiana Commission on Judicial Qualifications has issued a Public Admonition to Marion Superior Court Judge Rebekah F. Pierson-Treacy. The admonition is the result of language in an August 2011 invitation to an election fundraiser that gave the appearance that monetary campaign contributions would result in favorable court rulings.

Judge Pierson-Treacy admits the invitation included inappropriate statements and accepts the Public Admonition. She admits to violating Rule 1.2 of the Code of Judicial Conduct, which requires judges to act in a manner that promotes public confidence in the judiciary.

More than six-hundred invitations to a fundraiser for Judge Pierson-Treacy’s re-election campaign were mailed to Indianapolis area residents. The invitations included “Suggested Contributions,” with the following recommended monetary amounts and legal monikers:

Recipients of the invitations were directed to make checks payable to the “Re-Elect Judge Becky Committee.” Judge Pierson-Treacy stated the intention was to list the donation levels in an entertaining fashion.

Media reports related to the fundraiser suggested the invitation gave the appearance that “justice was for sale” in the judge’s courtroom. While there is no evidence the judge intended to barter rulings for contributions, the invitation presented a negative view of the judiciary.

The Commission determined the invitation likely gave the impression to the public that the judge’s rulings could be influenced by campaign contributions. As a result of the behavior, the Commission has issued a Public Admonition of Judge Pierson-Treacy and concluded its investigation into her conduct.

Here is the public admonition, issued not by the Supreme Court, but by the Indiana Commission on Judicial Qualifications.

Monday, November 28, 2011

Ind. Courts - "Lazy judge" rule changed, effective Jan. 1st

From an article by Tom Carusillo in Indiana Court Times, headed "A New Process for Withdrawing Jurisdiction Due to Delay in Ruling":

Currently, after a party files a motion to withdraw with the clerk of the court where the case is pending and recorded in the clerk’s praecipe book, the clerk reviews the chronological case summary (CCS) and determines if the judge has delayed ruling as alleged. If the clerk determines that the record shows that the judge has delayed ruling, the clerk notifies the judge, the parties and the Supreme Court that the submission was withdrawn as of the date of the praecipe.

The new procedure will commence in the same fashion as the current rules, except that instead of the clerk making a determination about delay in ruling, the clerk will forward the praecipe and CCS to the Executive Director of State of Court Administration, who will determine if delay has occurred. * * *

The clerks ... have often expressed to the Supreme Court their discomfort with this duty and the difficulty they experience in assessing some of the more subtle issues that have an impact on whether or not withdrawal of the case from the trial judge is warranted. The Court was persuaded by their comments, and therefore this burden is being removed from the clerks.

Two neighboring farmers were conducting business near Cambridge City in Wayne County. The defendants built their dairy in 2003 that included a milking parlor about fifteen feet from the plaintiffs’ house. When the defendants emptied a manure pit on the farm in early 2004, the stench of rotten eggs and raw sewage permeated the plaintiffs’ home. The plaintiffs became physically ill, and a stream that crossed their property became polluted. The defendants repeatedly and continuously emptied the manure pit at various times over the next several years until April 2005, when they sold their farm. Because the plaintiffs did not file their cause of action for negligence, trespass, and nuisance until 2009, the defendants are entitled to summary judgment with regard to the negligence and personal injury claims. However, the nuisance and trespass actions survive.

Appellants-plaintiffs Eric and Lisa Stickdorn (the Stickdorns) appeal the trial court’s grant of summary judgment in favor of the appellees-defendants Samuel and Mattie Lantz (collectively, the Lantzes), regarding the counts of negligence, trespass, and nuisance, that they filed against the Lantzes. The Stickdorns argue that the trial court erred in determining that either the two-year or six-year statutes of limitations barred all of their claims.

We conclude that the trial court properly determined that the Stickdorns’ personal injury claims are barred by the two-year statute of limitations. However, we reverse the grant of summary judgment for the Lantzes’ with regard to the nuisance and trespass counts. Thus, we affirm in part, reverse in part, and remand for further proceedings with respect to the trespass and nuisance counts.

Trujillo contends that trial counsel rendered ineffective assistance in failing to advise him of the possibility of deportation in the event he pleaded guilty.[3] * * *

Trujillo contends his guilty pleas be should be set aside because they were not entered knowingly as a result of the failure to advise him of the adverse immigration consequences of pleading guilty. With respect to this issue, Trujillo contends Ind. Code Ann. § 35-35-1-2(a)(1) (West, Westlaw through end of 2011 1st Regular Sess.) is dispositive. This provision states: “The court shall not accept a plea of guilty or guilty but mentally ill at the time of the
crime without first determining that the defendant … understands the nature of the charge against him[.]” * * *

Therefore, pursuant to the same rationale, we hold that the trial courts in the 1999 and 2008 cases did not violate I.C. § 35-35-1-2 in accepting Trujillo’s guilty pleas.
________
[3] We note that in order to reach this question, we assume for the sake of argument that Trujillo is correct that the failure to advise a defendant of the possible adverse immigration consequences of a guilty plea constitutes deficient performance. We also assume for the sake of argument, but explicitly do not decide, that the case announcing this rule, i.e., Padilla v. Kentucky, 130 S.Ct. 1473 (2010), applies retroactively to the instant case. We need not address these matters because we resolve this issue on grounds of lack of a showing of prejudice.

Jennings Daugherty appeals his convictions for possession of cocaine, as a Class B felony, and maintaining a common nuisance, as a Class D felony. Daugherty raises a single issue for our review, namely, whether the trial court abused its discretion when it admitted evidence seized pursuant to a search warrant. We affirm. * * *

Here, Daugherty's argument is three-fold. First, he asserts that the evidence seized from the December 2005 warrant was later suppressed and, therefore, those facts cannot serve as the basis for a subsequent warrant. Second, he contends that the two neighbors' comments to police were not corroborated and cannot establish probable cause. Third, Daugherty argues that Smith's statements regarding his relationship with Daugherty do not establish his credibility under the “statements . . . against his penal interest” doctrine because Smith had already been “caught red-handed." Daugherty's arguments are insufficient to demonstrate reversible error.

Ind. Decisions - Transfer list for week ending November 23, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Nov. 18, 2011 list.]

Ind. Courts - "Tippecanoe County tests video conferencing in court"

Video conferencing equipment that is being added at the county courthouse, the jail and Indiana Department of Corrections facilities is enabling judges to host hearings where prisoner's appear on a computer monitor instead of seated in the actual courtroom.

The equipment is still in the testing phase, said Dave Sturgeon, the county's director of management information technology. The investment so far has cost the county about $10,000, from his budget, but it's expected to pay for itself in savings within the first couple years of use. * * *

There are limitations to the use of video conferencing equipment, some logistical ones and some legal ones imposed by Indiana Supreme Court rules. Defendants cannot appear by video in trials, for example. And even in some of the pre-trial hearings, video equipment can only be used if the defendant consents.

Courts - "Tribune Co. bankruptcy case haunting former shareholders: Creditors poised to go after even the smallest investors to claw back billions"

Did you ever own stock in the Tribune Company?

Michael Oneal and Ameet Sachdev, Chicago Tribune reporters, had a massive story in the Sunday Tribune on the consequences. Here is how it starts:

On Nov. 8, a two-page letter appeared on Tribune Co.'s bankruptcy court docket, wedged between the usual stream of motions and lawyer fee applications.

It was written to the judge by an angry and bewildered Colorado investor named Mark Lies, who had owned stock in Tribune Co. when it was public and then cashed out like thousands of other shareholders when the media conglomerate went private in 2007.

Now, nearly four years later, Lies finds himself a defendant in one of dozens of lawsuits filed in courts around the country by a group of junior creditors hoping to claw back more than $2.5 billion of the $8.2 billion in proceeds from Tribune Co.'s disastrous leveraged buyout.

The lawsuits, 44 of them, target everyone who owned shares in the company when the deal closed, most of whom, it's safe to say, never considered the possibility that Tribune Co.'s descent into Chapter 11 less than a year after the buyout could come back to haunt them.

"What seems grossly unfair," Lies wrote to U.S. Bankruptcy Judge Kevin J. Carey, "is there doesn't seem to be any adult supervision looking out for the average investor like myself. … (Y)ou have unemotional, ruthlessly efficient and litigious investors attempting to extract whatever they can from whomever they can."

Lies and his fellow shareholders are caught in a legal battle that may be the most perplexing yet in a Tribune Co. bankruptcy case that has groaned on for nearly three years, producing a seemingly endless flood of expensive litigation.

Ind. Courts - More name changes being processed in Indiana courts

Virginia Black has an interesting story in the South Bend Tribune about more people going to court to change their names. Some quotes from the long story:

But among the several people on the court docket last week seeking new names, Cecil Lavern Black Hemingway’s reason for enduring the hassle (and the $137 fee) is far more common: His name needs to be consistent on his documents so that he may be issued an Indiana driver’s license.

As a teenager, Hemingway simply attached his stepfather’s last name to his birth name and has been called that ever since. But he explains that since he moved back to South Bend several years ago from Michigan, Indiana’s Bureau of Motor Vehicles demands that his birth certificate match the names on other paperwork.

In Michigan, where Hemingway was allowed to renew his license, the requirements are apparently not as strict. It became a hassle to keep driving up there to fetch a new license.

Circuit Court Judge Michael Gotsch says the number of name-change cases has definitely risen during the nearly 20 years he’s been affiliated with the court, first as a deputy prosecutor and then nearly seven as judge.

And the No. 1 reason for the increase, he says, has to do with tightening documentation requirements linked to 9/11 and Homeland Security.

The top motivations the judge sees in his courtroom:

* Homeland Security-related requirements. This not only goes for driver’s licenses - although Indiana has adjusted requirements more than once since 9/11 - but also what’s needed for passports and to collect Social Security.

* Women wanting to change their names after a divorce. This often happens as part of a divorce decree, but sometimes a woman will forget to do that or wants to regain her maiden name after her children are grown.

* Personal preference. A person has always used his middle name as a first name, for example, and wants to make it official. A sub-category of that might be in paternity cases, such as where a child wants a birth parent’s name.

Ind. Gov't. - "Congress should tackle Internet sales tax issue"

Despite the full-court press in the press, perhaps related to the Simon Property Group lawsuit (see Nov. 4th ILB entry), not all are onboard, reported Eric Bradner, in the Nov. 27th Evansville Courier Press:

A recent Indiana Fiscal Policy Institute report indicated that the state might be losing $77 million per year in sales tax revenue because online retailers are not taxed, according to an article published last week in the Coruier & Press.

But state Sen. Luke Kenley, the Noblesville Republican who chairs the powerful Appropriations Committee, said he thinks it's up to Congress, and not the Indiana General Assembly, to tackle the issue.

Kenley said the institute's report was illuminating. "It tells you how much tax disadvantage the Main Street retailers here have to face," he said.

But, he said, all that the state legislature could do is impose taxes on Internet retailers that have facilities located in Indiana – and not those that don't.

"The problem with that approach is that it will allow you to collect from somebody like Amazon, who may have some basis of nexus, but it will not allow you to level the playing field among all retailers," Kenley said.

"If you do that at the state level, you may catch Amazon but you won't catch eBay. You won't catch the catalogue houses like LL Bean. You won't catch Overstock.com."

He said some sort of resolution urging Congress to act would be the Indiana General Assembly's "only really effective action."

Kenley plans to visit Washington, D.C. this week. He will testify in front of the U.S. House Judiciary Committee about the issue on Wednesday.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/28/11):

Thursday, December 1st

9:00 AM - Indiana Department of Revenue v. United Parcel Service, Inc. (49S10-1107-TA-417) -
The Department of State Revenue denied UPS’s claim for a corporate income tax refund for tax year 2000 and assessed UPS with additional tax liability for tax year 2001. On UPS’s original tax appeal, the Tax Court issued an unpublished order granting summary judgment to UPS. United Parcel Service, Inc. v. Indiana Dep’t of State Revenue, No. 49T10-0704-TA-24 (Ind. Tax Ct. 2010). The Supreme Court has granted a petition for review.

ILB: This was a Dec. 30, 2010 opinion by Judge Fisher, where the issue was: "whether, during the years at issue, UPS properly excluded from its Indiana corporate income tax returns the income of two of its affiliates because they were “subject to” the gross premium privilege tax (premiums tax) under Indiana Code § 27-1-18-2." The Tax Court reversed the DOR's "denial of UPS's claim for refund of corporate income tax for 2000 and its assessment of additional corporate income tax against UPS for 2001."

9:45 AM - Loparex, LLC v. MPI Release Technologies, LLC, et al. (94S00-1109-CQ-546) -
Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana certified the following questions of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on September 30, 2011. The questions, as framed by the district court, are:
(1) Is Wabash Railroad Co. v. Young, 69 N.E. 1003 (Ind. 1904), still good law, such that individuals who voluntarily leave employment are precluded from pursuing a claim under Indiana Code section 22-5-3-2?
(2) In an action brought under Indiana Code section 22-5-3-2, are attorney fees incurred in defending an unsuccessful claim against a former employee or in prosecuting a claim by a former employee recoverable as compensatory damages?
(3) Is an unsuccessful suit to protect alleged trade secrets, within which a former employer seeks to preclude any competitive employment of a former employee by pursuing permanent injunctive relief and in settlement negotiations, a basis for recovery under Indiana Code section 22-5-3-2?

10:30 AM - Sean Ryan v. Dee Anna Ryan (71S03-1111-DR-644) - Following a divorce decree in which the St. Joseph Circuit Court adopted the parties’ property settlement agreement, the former husband filed a motion for relief under Trial Rule 60(B), claiming that the agreement should be modified because circumstances prevented the parties’ homes from being sold, but the trial court denied the motion without a hearing. The Court of Appeals reversed. Ryan v. Ryan, 946 N.E.2d 1191 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This was a March 28, 2011 COA opinion where the panel ruled: "we conclude that the trial court abused its discretion in denying Husband’s motion under Rule 60(B)(8) without first holding an evidentiary hearing. We remand with instructions to conduct an evidentiary hearing at which the parties are given the opportunity to present evidence in support of or opposition to Husband’s motion for relief from judgment and for the court to grant relief as appropriate after considering the evidence presented at the hearing." See ILB summary here, 2nd case.

Next week's oral arguments before the Supreme Court (week of 12/5/11):

Thursday, December 8th

9:00 AM - Randall Woodruff, et al. v. Indiana Family & Social Services (29S02-1110-PL-598) -
When a former intermediate care facility for developmentally disabled persons, by its bankruptcy trustee, brought contract and quantum meruit claims against the FSSA to recover expenses for caring for Medicaid patients, and the FSSA counterclaimed for setoff of costs incurred when the facility went into receivership, the Hamilton Superior Court granted summary judgment orders that resulted in no recovery for the facility. The Court of Appeals reversed and remanded. Woodruff v. Indiana Family & Social Servs. Adm., 947 N.E.2d 934 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

10:30 AM - John Witt, et al. v. Jay Petroleum, Inc. (38S02-1110-CV-608) - John Witt filed a complaint against Jay Petroleum, Inc. and Jack James seeking reimbursement of the cost to remediate environmental damage to land. Jay Petroleum filed a motion for temporary restraining order ("TRO"), contending Witt's remediation work would interfere with Jay Petroleum's testing of the site. The trial court granted the TRO. Thereafter, Jay Petroleum filed a motion for contempt, alleging Witt, his contractor, and his attorney had violated the TRO. The court found Witt and the others in contempt and awarded Jay Petroleum and James attorney's fees and expenses. The Court of Appeals reversed. Witt v. Jay Petroleum, Inc., 948 N.E.2d 824 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.

This week's oral arguments before the Court of Appeals (week of 11/28/11):

Tuesday, November 29th

1:40 PM - Christopher A. Bryant v. State of Indiana (45A03-1101-CR-11) - Christopher Bryant was convicted of two counts of Class A felony dealing in a narcotic drug, Class A misdemeanor resisting law enforcement, and Class A misdemeanor marijuana possession and admitted to being a habitual substance offender, for which he received an aggregate sentence of forty-five years of incarceration. On appeal, Bryant contends that (1) he was denied effective assistance of trial counsel because his attorney failed to file a motion to suppress evidence obtained through an allegedly illegal search and seizure, (2) the trial court abused its discretion in denying his mistrial motion, and (3) the trial court bused its discretion in sentencing him. The Scheduled Panel Members are: Judges Riley, Darden and Bradford. [Where: Lawrence North High School, Indianapolis]

Wednesday, November 29th

1:30 PM - Indianapolis Education Association and President Elden Wolting v. Indianapolis Public Schools (49A02-1101-PL-27) - Indianapolis Education Association and its president, Elden Wolting, appeal the trial court’s order reversing the Indiana Education Employment Relations Board’s decision that Indianapolis Public School (“IPS”) had engaged in an unfair labor practice when IPS failed to collectively bargain the addition of twenty-five days to the school calendar for four IPS schools. The Scheduled Panel Members are: Judges Friedlander, Darden and Vaidik. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 12/5/11):

Tuesday, December 6th

10:00 AM - Natalia Robertson, et al. vs. Gene B. Glick Company, Inc., et al. (49A05-1104-CT-158) - Natalia Robertson, the personal representative of the Estate of John Lee Cunningham, filed a wrongful death action on behalf of Cunningham’s autistic twelve-year old daughter. The action was dismissed pursuant to Indiana Code section 34-23-1-1 because more than two years had passed since the death of Cunningham. Natalia Robertson challenges the constitutionality of the Indiana General Wrongful Death Act, Ind. Code § 34-23-1-1. She contends its two-year limitations period which does not permit tolling in wrongful death claims involving disabled beneficiaries violates Indiana’s Privileges and Immunities clause, Ind. Const. art 1, § 23, and Due Course of Law clause, Ind. Const. art 1, § 12. The Scheduled Panel Members are: Chief Judge Robb, Judges Barnes and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

11:30 AM - Utility Center, Inc., vs. City of Fort Wayne, Indiana (49A02-1101-PL-27) - The City of Fort Wayne condemned Utility Center, Inc.’s property and the board of public works determined the amount of compensation owed to Utility Center. Utility Center appealed the Board’s determined amount to the trial court. Ruling on motions by the City, the trial court ordered that it will review the Board’s determination under an abuse of discretion standard, and that Utility Center is not entitled to a jury trial. In this interlocutory appeal, Utility Center argues the trial court is not limited to the abuse of discretion standard in reviewing the Board’s determination, and if it is, that limited review violates both the United States Constitution and the Indiana Constitution. Utility Center also argues it is entitled to have a jury determine the value of the condemned property The Scheduled Panel Members are: Chief Judge Robb, Judges Barnes and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

1:00 PM - Paul K. Ogden vs. Stephen Robertson, et al, (49A05-1101-CT-45) - Appellant, Paul K. Ogden (Ogden), appeals the trial court’s grant of summary judgment in favor of Appellee, Stephen Robertson, et al., with respect to Ogden’s perceived wrongful termination claim. Ogden presents us with four issues on appeal, which we restate as the following three issues:
First, he contends that the trial court erred in determining that he did not have a viable claim under the Indiana Whistleblower Law.
Second, Ogden argues that the trial court erred in determining that a memorandum he sent to Commissioner James Atterholt did not constitute protected speech under the Indiana Constitution.
Third, Ogden asserts that the trial court erred in determining that he was not entitled to the due process protections afforded to state at-will employees with more than six months experience. The Scheduled Panel Members are: Judges Riley, May and, Mathias. [Where: Rensselaer Central High School,
1106 East Grace Street,
Rensselaer, IN 47978]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, November 27, 2011

The opinion, which has been classified by the Court of Appeals panel as "Not for Publication" even though it appears to decide issues of first impression, is in the case of Christina Francis v. City of Indianapolis. The opinion, authored by Judge Bradford, affirmed the judgment of Marion County Judge Certo, finding Ms. Francis in violation of Indianapolis-Marion County Ordinance No. 531-102 for having a dog at large. The result, a $250 fine. PLUS, totally cease operation of the rescue shelter.

Some quotes from the 11-page decision:

For eleven years, [Christina] Francis has operated Luv-A-Dog, a nonprofit dog-rescue organization, at her home on Ashland Avenue in Indianapolis. In 2010, Francis adopted out 190 dogs. Francis has both outdoor and indoor dog enclosures on her property, with the outdoor enclosures surrounded by five and six-foot fencing, reinforced with hog paneling wire to prevent the dogs from pushing through. On November 18, 2010, one of Francis’s rescue dogs escaped, perhaps by climbing up on the hog paneling to jump over the fence. The dog was discovered in a neighbor’s yard standing in some brush, where Francis’s neighbor Kelly Hornaday observed it, from a distance of approximately twelve to fifteen feet. According to Hornaday, the dog’s front paws “came up,” and it lunged at her, trying to run at her. Hornaday did not know if the dog was caught in the brush. The dog was barking and growling aggressively, with its teeth out and mouth open. Animal control officers responded to the scene, where Francis acknowledged ownership of the dog and provided documentation of rabies vaccinations.

That day, the City issued Francis a citation for violating sections 531-102(c)(2) and 531-728 of the Revised Code of the City of Indianapolis and Marion County. At a March 9, 2011 hearing on the matter, the City moved to dismiss the section 531-728 violation, and the trial court found Francis in violation of section 531-102(c)(2) and assessed the minimum fine of $250. As a result of its finding, the trial court advised Francis, pursuant to section 531-728, that she was no longer permitted to own more than two dogs and must therefore cease operation of the shelter. The parties agreed to an August 10, 2011 compliance date, which the trial court subsequently stayed pending this appeal. * * *

Because the trial court found Francis in violation of section 531-102, it informed Francis that she was no longer permitted to keep more than two dogs and must dissolve her animal shelter. * * *

[W]e find no proportionality problem in barring pet owners who are unable to keep their dogs confined from owning more than two dogs at once. For the protection of the community, it simply makes sense to limit dog ownership by persons who permit dog violations to occur. That said, we recognize the trial court’s reluctance to impose this ordinance in light of Francis’s good work for local stray dogs. Unfortunate as the restrictions may be in this case, we cannot conclude they are unconstitutional.

Courts - "End the ban on cameras in the Supreme Court"

IN MARCH, the Supreme Court is scheduled to hear one of its most important cases in years: a constitutional challenge to President Obama’s signature health-care program.

The case should also be its most closely watched — literally. It would be a fitting vehicle for the court’s first televised argument.

We have long urged the justices to allow cameras in the court. Supreme Court arguments generally focus on issues of national importance, typically involve the best lawyers in the country and rarely, if ever, raise the kinds of privacy or safety concerns that crop up in lower courts, where the identity of witnesses and jurors may sometimes need to be shielded.

The court has firmly resisted, arguing that allowing televised proceedings could compromise decorum and change the nature of the sedate proceedings because lawyers — and perhaps even justices — might be tempted to ham it up. Some critics worry that broadcasts could encourage outbursts from audience members. Others say that cameras would make justices more recognizable to the public, increasing security concerns and infringing on privacy. Still others worry that media outlets could take sound bites out of context. Finally, some believe that the public would not be able to make sense of the complicated proceedings.

These are not arguments for banning cameras; they are arguments for banning virtually all coverage of the court and the justices. No reasonable person would accept that.

Courts - "Few offices have fought post-conviction evidence with as much gusto as the Lake County state’s attorney’s office, which is coming under increased scrutiny for an alarming number of [perceived] wrongful convictions"

A very long article in the NY Times Magazine today, reported by Andrew Martin, looks at the case against Juan Rivera, where "prosecutors used new and novel theories to explain away the scientific evidence." A sample:

Why prosecutors sometimes fight post-conviction evidence so adamantly depends on each case. Some legitimately believe the new evidence is not exonerating. But legal scholars looking at the issue suggest that prosecutors’ concerns about their political future and a culture that values winning over justice also come into play. “They are attached to their convictions,” Garrett says, “and they don’t want to see their work called into question.”

Few offices have fought post-conviction evidence with as much gusto as the Lake County state’s attorney’s office, which is coming under increased scrutiny for what defense lawyers and law professors suspect is an alarming number of wrongful convictions. One murder case has unraveled, and several other rape and murder convictions are now being challenged. “They can never admit a mistake,” said Kathleen Zellner, a lawyer who is suing Lake County on behalf of a man named Jerry Hobbs, who spent five years in jail for killing his daughter and her friend; he was released last year after sperm found inside one of the girls was linked to a convicted rapist and accused murderer. “They have to solve cases quickly, and if a problem develops or doubt develops about a person’s culpability, they feel like they have to press on,” she said. “It’s a self-defeating philosophy.”

Lake County encompasses some of Chicago’s wealthiest suburbs, like Lake Forest and Mettawa, but Waukegan, which sits along Lake Michigan on the eastern edge of the county, is a world apart from those communities. It is a once-thriving factory town that in recent years became known for its noxious Superfund sites: remnants of an asbestos plant and an outboard-motor manufacturer. The county legal system is controlled by a relatively small group, almost all Republicans. The state’s attorney is Michael Waller, who has held the job since 1990, when he was appointed to fill out the term of his predecessor. Until recently, Waller’s wife, Jane, was a long-serving Lake County judge. (Waller declined to be interviewed for this article.) Of the three dozen sitting judges in Lake County, three are Democrats. Two-thirds are former prosecutors, mostly from the office of the Lake County state’s attorney. The current sheriff is a Republican and also a former Lake County prosecutor.

That is the heading to an article dated Oct. 31, 2011 in Indiana Court Times, authored by Adrienne Meiring, who has served Counsel for the Indiana Judicial Nominating Commission and the Indiana Judicial Qualifications Commission since 2009. Some quotes:

Some combinations inherently go together, like chocolate and peanut butter. Others initially sound like a good idea (e.g. chili mixed with jalapeno peppers) but later have regrettable after effects. Requiring a defendant to make a charitable contribution as a sentencing condition is a combination that falls into the latter category.

Proponents of this sentencing practice argue that requiring a defendant to make a charitable contribution more effectively forces the defendant to accept responsibility for his or her actions. One minority view is found in State v. Peiger, 692 A.2d 1273 (Conn. 1997), in which the Connecticut Supreme Court affirmed a defendant’s sentence which included a condition that he make a $2,500 contribution to the hit-and-run victim’s treating hospital. * * *

Former Indiana Court of Appeals Chief Judge Wesley Ratliff, however, viewed the issue differently. In Ratliff v. State, 596 N.E.2d 241, 243 (Ind. Ct. App. 1992), the Indiana Court of Appeals determined a trial court judge did not err when he ordered two defendants to make contributions to a charity of their choice as they had agreed to do in their plea agreements. Chief Judge Ratliff (no relation to the defendant) reluctantly concurred, reasoning the defendants could not propose the charitable alternative in their plea agreements and then later claim error. Id. at 244. Nonetheless, he warned that, “But for the invited error rule, I would not concur, because I see a great potential for mischief in permitting a criminal defendant in effect to buy his way out of trouble by making a charitable contribution….Therefore, I believe plea agreements proposing a charitable contribution in lieu of penalty should not be accepted.” Id.

Judicial ethics committees and judicial conduct organizations that have weighed in on the matter have echoed Chief Judge Ratliff’s concerns and urged judges to discontinue such sentencing practices.

Ind. Gov't. - Still more on "The cost of Indiana education: An examination of 275 Indiana school superintendent contracts"

Updating this ILB entry from Nov. 22nd, the Evansville Courier & Press today has an editorial headed "Public deserves full disclosure on pay packages." It begins:

The revelations exposed by the Courier & Press in a three-part series on how Indiana school superintendents are paid represent the very antithesis of transparency in government. It's somewhat surprising. At a time when partisan politicians are challenged daily to be open and honest in their conduct of the public's business, we learn that many of our public school boards are attempting to hide from taxpayers just how much they are paying their school superintendents.

But why? Apparently, as Courier & Press staff writer Thomas B. Langhorne wrote, these school boards are attempting to keep published salaries low in an effort to avoid public criticism that they are paying their superintendents too much. Of course, that scenario flies in the face of responsible, honest governance. These school boards should be able to defend their actions to the public, while recognizing that some of them are doing something now that may be legal, but is patently wrong.

NEW CASTLE -- The trial of a convicted felon accused of setting a fire that killed a New Castle woman has been postponed for a fourth time, as a judge contemplates whether the defendant's reported confession can be used as evidence.

Donald Guffey, 49, is now set to stand trial March 19 on charges of arson and felony murder. He is accused of igniting a July 2010 blaze at a North 18th apartment building. An occupant of a second-floor apartment, 64-year-old Linda Conn, lost her life. The trial has been scheduled to begin Monday.

The judge in the case, Mary Willis of Henry Circuit Court 1, is considering whether to grant a motion by Guffey's public defender, Bryan Williams of Anderson, to declare his client's alleged confession to be inadmissable at trial.

In a recent court filing, Williams wrote that his client was first implicated in the arson fire on Aug. 31, 2010, by police informant Johnny Perdue, who claimed Guffey told him he had set the blaze. * * *

"There is no physical evidence to place (Guffey) at the scene of the crime," wrote Williams, adding that investigators also misled his client by telling him he had failed a lie detector test.

In a response, Henry County Prosecutor Kit Crane noted that Guffey was "advised of, and expressly acknowledged," his right to remain silent "not once but five times" before giving his statement.

Crane maintained Guffey -- whose criminal record includes convictions for armed robbery, burglary and theft, resulting in long stints in prison -- was "street wise," not likely to have been intimidated by police interrogation tactics.

NEW CASTLE -- The trial of a convicted felon accused of setting a fire that killed a New Castle woman has been postponed for a fourth time, as a judge contemplates whether the defendant's reported confession can be used as evidence.

Donald Guffey, 49, is now set to stand trial March 19 on charges of arson and felony murder. He is accused of igniting a July 2010 blaze at a North 18th apartment building. An occupant of a second-floor apartment, 64-year-old Linda Conn, lost her life. The trial has been scheduled to begin Monday.

The judge in the case, Mary Willis of Henry Circuit Court 1, is considering whether to grant a motion by Guffey's public defender, Bryan Williams of Anderson, to declare his client's alleged confession to be inadmissable at trial.

In a recent court filing, Williams wrote that his client was first implicated in the arson fire on Aug. 31, 2010, by police informant Johnny Perdue, who claimed Guffey told him he had set the blaze. * * *

"There is no physical evidence to place (Guffey) at the scene of the crime," wrote Williams, adding that investigators also misled his client by telling him he had failed a lie detector test.

In a response, Henry County Prosecutor Kit Crane noted that Guffey was "advised of, and expressly acknowledged," his right to remain silent "not once but five times" before giving his statement.

Crane maintained Guffey -- whose criminal record includes convictions for armed robbery, burglary and theft, resulting in long stints in prison -- was "street wise," not likely to have been intimidated by police interrogation tactics.

Friday, November 25, 2011

Ind. Courts - "Slaying suspect needs lawyer"

Recall the Nov. 4th ILB entry about the Mooresville man, Edward C. Zaragoza, charged with felony murder but without an attorney since his attorney was suspended from practice.

In a Nov. 23rd story in the Lafayette Journal Courier, Sophia Voravong reports:

Thirty-one-year-old Edward C. Zaragoza entered court Wednesday without a lawyer to represent him on charges that he killed Kory D. Rogers on April 8, 2010.

It's a situation Tippecanoe Superior 1 Judge Randy Williams wants to see remedied for Zaragoza next week, when he likely will appoint a public defender at Zaragoza's request.

Zaragoza recently wrote Williams after learning that his attorney, Patrick Baker, had been suspended from practicing law for six months by the Indiana Supreme Court, based on misconduct findings in an unrelated homicide case Baker handled.

A family member paid Baker's $10,000 in fees, Zaragoza wrote in a letter to Williams. In court Wednesday, Zaragoza said no other money was available and he was unsure if Baker would refund the full or partial amount. * * *

Wednesday's hearing was the second time this week that Zaragoza appeared in court without counsel.

Baker had requested on Nov. 10 that Williams schedule another hearing in hopes of getting Zaragoza's case resolved before his suspension. Baker, however, failed to show up to that morning hearing.

Updating this ILB entry from Nov. 22nd, here is John Russell's Nov. 23rd story in the Indianapolis Star, headlined "Gas plant some call risky gets a key OK: IURC approves deal for state to buy synthetic product made from coal." Some quotes:

Under the plan, the Rockport gasification plant would take in 3.2 million tons of coal each year, produce 47 million BTUs of natural gas and sell 38 million of those BTUs at a firm price to the Indiana Finance Authority every year for 30 years. The state agency would resell the gas daily on the national market.

The risk for Indiana consumers is in the firm price. In sales on the open market, gas prices routinely rise or fall every day with supply and demand.

But the Rockport investors always would receive from the state a firm payment: about $7.57 per 1 million BTUs, or about $7 billion over 30 years. This would cover plant operations, coal costs, shipping the natural gas and loan repayments, plus a small profit of about 5 percent on the $500 million the investors plan to spend on the plant.

On Tuesday, natural gas futures were trading for $3.39 per 1 million BTUs, or less than half the price built into the state's model.

The story also reports:

[T]he Indiana Finance Authority has projected that the project could cut the monthly bill for the average home by 71 cents. That would add up to savings for the typical home of $255.60 over 30 years, which means the gas-burning residents of the state altogether would save about $8.5 million per year.

If I read that right, the best case scenario will mean a household savings of only "$255.60 over 30 years." The worst case?

Jerrold Ulrey, vice president of regulatory affairs and fuels at Vectren Holdings, testified before the IURC that gas taken from the vast North American shale fields could wind up cheaper than Indiana's gas from coal. If this proves true, and gas from coal becomes costlier, he testified, the deal would saddle Indiana gas customers with higher monthly gas bills for years.

"By the end of the first 10 years, the (Indiana) gas customers would have an accumulated loss of nearly $500 million," he told the IURC.

[Governor] Daniels has dismissed the utility executives' views and said natural gas prices will rise in the years ahead, and Hoosiers will benefit from the Rockport gas.

Here is the 106-page order of the IURC, approved Nov. 22, 2011. The vote: "ATTERHOLT, LANDIS AND ZIEGNER CONCUR; MAYS AND BENNETT NOT PARTICIPATING."

The "Guarantee of Savings" discussion begins at p. 83 of the order. The subdivision on "d. Consumer savings" begins on p. 91 and concludes on p. 92:

Having considered the evidence presented regarding modeling analyses and other
estimates of consumer savings under the SNG Contract, we cannot conclude that the SNG
Contract will provide a specific amount of consumer savings under the SNG Contract because
savings will be highly dependent on future commodity prices, particularly natural gas prices, and
to a lesser degree coal and petroleum coke prices. The evidence demonstrates strong
disagreements about the most appropriate modeling techniques to evaluate these consumer
savings and what errors or flaws may exist in various modeling approaches presented. While
estimates of potential consumer monetary savings scenarios are important and provide important
information for the Commission to consider, the evidence indicates that future commodity price
uncertainty, particularly over the long term, renders modeling and other calculations of consumer
savings imprecise at best and potentially misleading at worst.

However, sufficient evidence exists for us to find that the model and inputs used by Joint
Petitioners to calculate consumer savings under the SNG Contract to be reasonable. While the
actual amount of savings cannot be predicted with certainty, the Commission notes alternative
provisions are present in the SNG Contract to provide the guarantee of savings. Specifically, at
the end of the thirty-year term, IG may pay in cash any shortfall that may exist, the SNG Facility
may be sold and the proceeds used to pay any savings deficit, or the Contract term may be
extended at a lower SNG price until savings are achieved.

Ready was appointed to the magistrate position by former Circuit Court Judge Terry Crone and continued as a magistrate for Michael Gotsch when Gotsch was elected Circuit Court judge in 2004.

Magistrates are full judicial officers except that they cannot issue their own orders without a signature from a judge, in most circumstances. There are two magistrates for Circuit Court, one in Mishawaka and one in South Bend.

The salary for a magistrate is $105,393, Gotsch said.

Applicants must be a resident of Indiana and admitted to practice law. Preference will be given to St. Joseph County residents, Gotsch said.

The deadline to apply is noon Dec. 2. Applicants should be prepared to begin work Jan. 2.

Ind. Gov't. - "White is a no-show in court"

Updating yesterday's ILB entry on the Charlie White hearing, two stories today. From Carrie Ritchie's long report in the Indianapolis Star:

Whether a Marion County judge will allow Indiana Secretary of State Charlie White to remain in office is unclear.

So is the reason for White's absence at a hearing Wednesday to determine his fate.

Marion Circuit Judge Louis Rosenberg heard oral arguments Wednesday morning about the Indiana Democratic Party's claim that White was illegally registered to vote at the time he declared his candidacy and is therefore ineligible to serve. * * *

Rosenberg, who conducted the hearing without White, said he would issue a ruling in the next 30 days. But either side could appeal Rosenberg's decision, so the case likely is far from over.

If the judge sides with the Democrats, White could be removed from office and Democrat Vop Osili, who lost to White in the November 2010 election, could take over. Osili was elected Nov. 8 to the Indianapolis City-County Council.

White also could lose his job if he's convicted of any of the seven felony charges he's facing in Hamilton County. Those charges include counts of voter fraud and theft. His trial is scheduled for Jan. 30.

In a phone interview after Wednesday's hearing, White didn't offer an explanation for his absence but said he's confident the judge will be thorough in his review.

A court employee said Circuit Judge Louis Rosenberg told her that White had not been ordered to attend, but declined to say whether he was surprised when White didn’t show up.

When White still hadn’t arrived 20 minutes after the 9 a.m. hearing was set to begin, Rosenberg asked if anyone else knew where White was. Deputy Attorney General Betsy Isenberg, representing the state Recount Commission, said White had phoned her about two weeks ago to ask whether he was required to attend and she had advised him to contact the court.

White had been expected to represent himself after his attorney, Republican powerhouse lawyer Jim Bopp, resigned in August.

Democratic attorneys were heavily critical of White for not attending when he was acting as his own lawyer.

“As an attorney, I would not have the courage or the chutzpah not to show up for a hearing if I was representing a client,” Bill Groth said.

“I found it very interesting that Charlie White wasn’t here,” said Groth’s co-counsel, Karen Celestino-Horseman. “It kind of puts me in mind of my nephews when they were little standing behind mom’s leg, I can throw the rock out and know I’m safe rather than coming in here and confronting it all where he would have had to address it without having legal counsel by his side.”

A spokesman for the secretary of state’s office said White never intended to attend Wednesday’s hearing.

“There was no reason for him to be there. He wasn’t subpoenaed or anything,” said A.J. Feeney-Ruiz. He noted that White had filed a brief in his own defense, and said the “sole purpose” of Wednesday’s hearing was to defend the recount commission’s decision.

But White told WISH-TV that he had planned on attending the hearing but mistakenly thought it was scheduled for 1 p.m. White didn’t return phone calls from The Associated Press seeking comment.

Stage collapse - "Judge allows State Fair victims to form class"

A federal judge certified all of the victims of the Indiana State Fair concert stage collapse into a single class Wednesday in a lawsuit challenging a law that caps the state's liability at $5 million.

But she concluded that the plaintiffs are unlikely to win the challenge.

The ruling by U.S. District Judge Sarah Evans Barker in Indianapolis allows the estates of three of the seven people killed in the Aug. 13 collapse to pursue their federal constitutional challenge to Indiana's tort claim law, which caps the state's financial liability at $700,000 per victim and a total of $5 million for all victims. * * *

Barker denied the plaintiffs' request for a preliminary injunction that would prevent any payouts from the $5 million fund to victims of the collapse, saying they had not shown they are likely to win the case, a required step before federal preliminary injunctions are granted.

"We cannot conclude that ...Plaintiffs are clearly 'likely' to succeed on their assertion that Indiana's tort claims damages caps violate the federal Constitution," Barker wrote in a 26-page ruling.

However, plaintiffs' attorney Kenneth J. Allen of Valparaiso saw the ruling as a clear victory in his clients' bid to get the Indiana tort claims law thrown out. Instead of Indiana-employed judges deciding the constitutionality of the law, it will be federal judges, he said.

"Challenging the tort claim limits in federal court gives us a great opportunity for fair and impartial review not colored by the fact that the state treasury is involved or that state employees need to decide whether the state needs to pay more money," Allen said in a telephone interview.

He predicted the lawsuit citing the 14th Amendment protections to due process and equal protection eventually would go before the U.S. Supreme Court and that the Indiana law would receive the scrutiny it deserves.

"We think ultimately, if the U.S. Supreme Court looks at it in a rational light, it will be overturned," Allen said. * * *

A separate lawsuit filed Tuesday in Marion Superior Court in Indianapolis on behalf of the estates of the four other people who died and 44 other victims seeks unspecified damages from Sugarland, producers, stage riggers and others associated with the concert.

Ind. Courts - Are traveling trial courts the next thing?

"Starke Circuit Court Goes on the Road" is the headline to this story by "ted" at K99.3 WKVI FM. Some quotes:

Starke Circuit Court Judge Kim Hall will be on the bench today, but it will not be on the third floor of the Starke County Courthouse. Judge Hall is taking his court on the road.

“We’re going to have court at Oregon-Davis High School,” said Judge Hall. “The reason for this is that for many years, Oregon-Davis would bring a bus load of Seniors to the Starke Circuit Court and watch the court proceedings and they always enjoyed that and it was always educational for them. For the last couple of years, for various reasons, they haven’t been able to get to the Courthouse. I’ve been talking with some teachers and we’ve decided that we’re going to bring court to the Oregon-Davis High School. I checked with the Supreme Court and the staff there was not aware of any other court in Indiana doing this, but they thought it was a good idea. This morning, we’re going to have the prosecutors, defense attorneys and the Sheriff there with some of the inmates and we’re going to have regular court.”

We asked the judge what type of cases the students would be hearing.

“We’re going to have all criminal cases, I think we have seven of them on the docket. It will be a regular Wednesday morning with cases involving drugs, methamphetamine and manufacturing methamphetamine. One individual was recently convicted at a jury trial of manufacturing methamphetamine. It will be variety of different criminal cases.”

Ind. Gov't. - "Missed Deadline May Have Cost State Millions: State Late Applying For Piece Of $303M In Education Money"

INDIANAPOLIS -- State lawmakers are questioning why the State Student Assistance Commission failed to meet the application deadline for potentially $18 million in federal education funding.

In a Nov. 15 memo to members of the House and Senate Democratic Caucuses, Rep. Bill Crawford, D-Indianapolis, questioned the loss of the Gear Up funds, which are federal dollars used to help K-12 students in need get ready for college with tutoring, mentoring and other means.

The U.S. Department of Education's deadline to apply for a piece of $303 million was July 14 at 4:30 p.m. The State Student Assistance Commission of Indiana's application was received July 15 at 11:19 a.m.

The Maryland Register, a state news publication that provides updates on state regulations, legal opinions and hearings, has reversed a decision to charge consumers for its real-time, online news. The policy reversal came after two articles and a legislative inquiry highlighted a new [$190] annual fee for consumers to view information the same day it was published.

Ind. Decisions - "Who will pay for Camm’s new prosecutor? Cost of trials so far have exceeded $3 million"

In a story dated Nov. 23rd, Matt Thacker of the New Albany News & Tribune reports:

NEW ALBANY — How much more will it cost?

That was the question many people asked when the Indiana Court of Appeals removed Floyd County Prosecutor Keith Henderson from the David Camm case last week.

Floyd County Council President Ted Heavrin, also the county’s police chief, said the total cost of two trials and appeals for David Camm and one trial and appeals for co-defendant Charles Boney has now exceeded $3 million. Attorneys on both sides of the case have said this trial will cost at least another $1 million, and that was before the most recent court rulings.

Camm is facing a third trial for the murders of his wife, Kimberly, 35, and two children, Bradley, 7, and Jill, 5, in September 2000 at their home in Georgetown.

The Court of Appeals ruled that a special prosecutor should be appointed due to an “actual conflict of interest,” after Henderson signed a book deal to write about the case. Henderson canceled the deal once Camm’s second conviction was overturned by the Indiana Supreme Court, but said he still wanted to write the book after the case is finished.

The story goes on to detail how special prosecutors are paid, and then looks at "logistics costs":

The trial will be held before Spencer County Judge Jonathan Dartt. Jurors will be brought in from another part of the state and will be sequestered during trial. Camm’s first trial lasted for nine weeks, while the second went on for six weeks.

“It’s going to cost extra money to bring them in, house them and the whole nine yards,” Heavrin said. “If you have to sequester them, you have to feed them, pull security, buy them food.”

Joel Schumm, clinical professor of law at the Indiana University School of Law in Indianapolis, said he cannot imagine the third trial will be any cheaper than the previous ones.

“The cost for the first two trials was very high — higher than even death penalty cases,” Schumm said. * * *

One concern raised was that a special prosecutor using another county’s funds could run up the costs, but Schumm said that is not likely. He pointed out that Henderson called “five purported experts” on “bloodstain analysis” during the second trial. The defense then called four experts on the same topic.

“More than one expert from each side on a specific topic seems unusual to me,” Schumm said.

Schumm said none of this would be necessary if Henderson had not speculated that Camm molested his daughter after the Indiana Court of Appeals warned against such testimony. Henderson has not commented since the court’s most recent decision.

The county council set aside $1 million for a third Camm trial after the county received a $2 million reimbursement from the state’s takeover of child welfare services. Heavrin expects the total costs will exceed even that amount.

“We’ll just have to get it from [Economic Development Income Tax] or rainy-day [funds],” Heavrin said. “We’re keeping our heads above water.”

He said the trial will not put the county in the financial trouble seen in Clark County. However, he said the money could have been used on other projects. That does not diminish the resolve to go forward with the case.

“This trial’s important because of the people that got murdered,” Heavrin said.

The Court conducted a hearing on October 24, 2011 [Docket No. 30], at which
time we determined that class certification was not immediately necessary. Having
reviewed the parties’ subsequent briefing, and for other reasons detailed in this entry, the
Court now GRANTS Plaintiffs’ Motion to Certify Class, but only with respect to the
federal constitutional issue. Additionally, we DENY Plaintiffs’ Motion for Preliminary
Injunction, and we DENY Plaintiffs’ Emergency Motion for Discovery. * * *

[I. Motion for Class Certification] * * *

In conclusion, we hold that Plaintiffs’ proposed class satisfies the demands of Rule
23(a) and is maintainable under Rule 23(b)(2) for the limited purpose of determining
whether Indiana Code § 34-13-3-4 comports with the U.S. Constitution. In making this
determination, we are guided by Rule 23(c)(4), which instructs that, “[w]hen appropriate,
an action may be brought or maintained as a class action with respect to particular
issues.” Fed. R. Civ. P. 23(c)(4). We follow the Seventh Circuit’s guidance that if a case
presents “hot-button” issues such as constitutional inquiries, “it makes good sense,
especially when the class is large, to resolve . . . [such] issues in one fell swoop while
leaving the remaining, claimant-specific issues to individual follow-on proceedings.”
Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003). Lastly, although we
acknowledge the real merits of Defendants’ Eleventh Amendment and abstention
arguments against class certification, our limited certification does not run afoul of these
doctrines.

[W]e do not believe the balance of the harms weighs in favor of granting a
preliminary injunction.

As public officials, Defendants face a daunting set of responsibilities when
allocating State funds. They must remain ever mindful of their obligation to budget prudently and safeguard the overall financial health of the State. At the same time, they
are tasked with making a fair and equitable distribution of these funds. They also know
that a fair distribution, in situations as tragic and emotionally charged as the Stage
Collapse, necessarily means that a distribution should not be unfairly delayed. We are
acutely aware that “the current economic climate imposes enormous challenges on the
State’s ability to deliver on . . . governmental services.” C.H. v. Payne, 683 F. Supp. 2d
865, 884 (S.D. Ind. 2010). Given the severity of Plaintiffs’ and other similarly situated
claimants’ reported injuries, we believe the public interest would not be served by
restricting Defendants’ scope of action as Plaintiffs have requested. When compared with
the potential deprivation of much-needed money that the claimants are likely to suffer if a
preliminary injunction is granted, the balance of hardships tips in Defendants’ favor.

[III. Motion for Emergency Discovery]

Having determined that this action will proceed as a limited class action under
Rule 23(b)(2), we believe that the involved issues will now center more around matters of
law than issues of fact. We doubt that emergency discovery would provide much in the
way of fairness or efficiency, and we therefore decline to grant Plaintiffs’ Motion for
Emergency Discovery. Along these lines, we also fail to see what additional utility an
evidentiary hearing might provide for either the parties or the Court, and we conclude that
no such hearing is necessary at this juncture.

Conclusion

For the foregoing reasons, the Court now GRANTS Plaintiffs’ Emergency Motion
to Certify Class under Rule 23(b)(2), but only for the issue of whether Indiana Code § 34-
13-3-4 violates the U.S. Constitution. The Court also DENIES Plaintiffs’ Motions for
Preliminary Injunction and for Emergency Discovery.
IT IS SO ORDERED.

Ind. Decisions - Two Posner opinions today on Indiana cases, at least one is priceless

This appeal requires us to
explore the duty of a trustee in bankruptcy to prosecute
uncertain claims for the recovery from third parties of
assets allegedly owned by the bankrupt estate. * * *

And remember that the license wasn’t actually worth
$4.1 million—that the trustee estimated its value to the
debtor to be only $600,000 and that this was a reasonable
estimate. He thought the probability that a
claim to those rights would succeed was zero, but even
if it were much higher it still wouldn’t have been
worth pursuing. Litigation is expensive! If the probability
of the trustee’s prevailing on such a claim were
50 percent (much too high, in light of our analysis),
the expected gain from pressing the claim would
be $300,000, but that would be gross rather than net.
The $100,000 received in settlement would be gone,
leaving an expected gain from litigating of $200,000. It
is unlikely that a complex commercial litigation could
be conducted for less than that amount of money and
therefore the net gain (the gross expected gain minus
litigation expense) would be unlikely to exceed $100,000
and might well be negative.

The bankruptcy judge and the district judge got it
right: the trustee had acted reasonably in settling the
debtor’s claim against the university for $100,000.

We have consolidated for
decision two appeals that raise concerns about appellate
advocacy. These concerns are likely to arise in similar
appeals, so we have decided to address them in a published
opinion. Both are appeals from grants of forum non
conveniens in multidistrict litigation. * * *

When there is apparently dispositive precedent, an
appellant may urge its overruling or distinguishing or
reserve a challenge to it for a petition for certiorari but
may not simply ignore it. We don’t know the thinking
that led the appellants’ counsel in these two cases to
do that. But we do know that the two sets of cases out
of which the appeals arise, involving the blood-products
and Bridgestone/Firestone tire litigations, generated many
transfers under the doctrine of forum non conveniens, three
of which we affirmed in the two ignored precedents.
There are likely to be additional such appeals; maybe
appellants think that if they ignore our precedents their
appeals will not be assigned to the same panel as decided
the cases that established the precedents. Whatever the
reason, such advocacy is unacceptable.

The ostrich is a noble animal, but not a proper
model for an appellate advocate. (Not that ostriches
really bury their heads in the sand when threatened; don’t
be fooled by the picture below.) The “ostrich-like tactic
of pretending that potentially dispositive authority
against a litigant’s contention does not exist is as unprofessional
as it is pointless.” Mannheim Video, Inc. v. County
of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill
v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).

[ILB: See pp. 5 & 6 of opinion for color photos of ostrich with head in sand, and man in suit with head in sand.]

The attorney in the vehicular accident case, David S.
“Mac” McKeand, is especially culpable, because he filed
his opening brief as well as his reply brief after the Abad
decision yet mentioned it in neither brief despite the
heavy reliance that opposing counsel placed on it in
their response brief. In contrast, counsel in the bloodproducts
appeal could not have referred to either Abad
or Chang in their opening brief, did try to distinguish
Abad (if unpersuasively) in their reply brief, and may
have thought that Chang added nothing to Abad. Their advocacy
left much to be desired, but McKeand’s left more.
AFFIRMED.

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

In summary, the evidence favorable to the trial court’s judgment supports the trial court’s decision to deny T.S.’s request to be removed from the SRP [Sexual Responsibility Program]. The fact that T.S. has yet to complete the program is not, by itself, a valid reason to excuse him from the program.3 In fact, T.S.’s continued failure to complete the SRP actually indicates that he is still in need of the treatment that the SRP offers. The State presented testimony from experts that T.S. was still in need of the treatment offered by the program and that the risks associated with the program were outweighed by the potential benefit that T.S. might receive. We therefore affirm the decision of the trial court.

Gordon B. Dempsey and Gordon B. Dempsey, P.C. (collectively referred to as “Dempsey”), appeal the trial court’s denial of his motion to reinstate his complaint against attorney Todd H. Belanger. Although Dempsey’s complaint against Belanger had been dismissed on the merits in 2007, Dempsey contends that the Journey’s Account Statute and Indiana Trial Rule 60(B)(7) allow him to continue his action against Belanger. Concluding that Dempsey is not entitled to continue his action against Belanger and that the trial court properly awarded attorney’s fees to Belanger, we affirm the trial court in all respects. We also conclude that appellate attorney’s fees are warranted and therefore remand this case for the limited purpose of determining Belanger’s appellate attorney fees.

State of Indiana appeals from the trial court's dismissal of a Class D felony Operating a Vehicle with a Blood Alcohol Concentration (“BAC”) of Greater than 0.08 percent with a Previous Conviction of Operating While Intoxicated (“OWI”) charge against Appellee-Defendant James Eichorst. We reverse and remand. * * *

In summary, we conclude that in order for an OWI or operating a vehicle with a BAC of over 0.08 percent charge to be enhanced to a Class D felony under the Indiana Code section 9-30-5-3, the State is required to prove that the defendant has a previous OWI conviction and that the conviction falls within the five-year period immediately preceding the commission of the instant offense. Consequently, the trial court erroneously dismissed the Class D felony operating a vehicle with a BAC of over 0.08 percent charge against Eichorst. We reverse and remand for further proceedings consistent with this opinion.[4]

The judgment of the trial court is reversed, and the cause is remanded.
__________________
[4] * * * We also think it worth noting that today, we issue our opinions in the cases of State v. Traver, Cause No. 71A04-1102-CR-131, and State v. Wilson, Cause No. 71A05-1102-CR-130, in which we also reverse the dismissals of Class D felony operating a vehicle with an illegal BAC with a Previous Conviction of OWI charges. The State earlier moved to consolidate the three appeals, a motion which the motions panel of this court denied. We will not revisit the decision of the motions panel on this question, as Wilson's, Traver's, and Eichorst's arguments were not identical.

Ind. Gov't. - Charlie White hearing this morning [Updated]

White had been expected to represent himself during the hearing. [before Judge Rosenberg in Marion County] * * *

A court hearing on whether Republican Indiana Secretary of State Charlie White is eligible to hold office started without him Wednesday morning.

A deputy attorney general representing the state Recount Commission told a Marion County judge that she recently told White she didn't know whether he needed to be present for Wednesday's hearing.

State Democrats are appealing a June decision in White's favor by the Recount Commission. Democrats argue that White illegally registered to vote in the 2010 primary with his ex-wife's address in Fishers when he also had a condo with his then-fiancee.

Stage collapse - Lawsuit "filed against Sugarland and at least a dozen other companies that were part of the concert and the set up at the State Fair on August 13th"

The 16-page lawsuit is filed on behalf of 47 victims of the collapse, including the estates of four of the seven people killed. This lawsuit stands apart because it does not include the State of Indiana.

Instead, it goes after Sugarland, Local 30 whose members put up the stage, Mid-America Sound who owned the stage, and others associated with the concert lighting and production.

Tony Patterson, one of the 22 attorneys representing these victims, says there just isn't enough money to cover the extensive damages suffered by the families of those who died nor those catastrophically injured.

So in addition to the public donations disbursed Monday and the ongoing negotiations over the State's $5 million liability fund, this is the third step in trying to collect damages.

Ind. Decisions - 7th Circuit issues one Indiana opinion today

In this suit under 42 U.S.C.
§ 1983, Christopher Pavey claims Indiana prison officials
violently roused him from his cell and in the process
broke his arm. The defendants insist Pavey’s suit must be
dismissed because he failed to exhaust his administrative
remedies for the incident. 42 U.S.C. § 1997e(a). This
is the third time the case has been before this court. We
first held that the question whether Pavey had exhausted
his administrative remedies was clouded by disputed issues of material fact. Pavey v. Conley, 170 F. App’x 4 (7th
Cir. 2006). Then we held that those disputed facts ought
to be resolved by a judge, not a jury. Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008). The district court has since conducted
an evidentiary hearing, resolved the factual disputes
in favor of the defendants and, accordingly, dismissed
Pavey’s suit for failure to exhaust. The question on
appeal is whether those findings are clearly erroneous.

We affirm. Pavey has not convinced us that it was clear
error for the district court to disbelieve his account of
events. And even if his story should have been credited,
his own words belie any suggestion that he exhausted
his administrative remedies.

That headline is from a brief story posted on the NWI Times website by reporter Keith Benman:

State regulators Tuesday approved construction of a coal gasification plant and a 30-year contract for a state agency to purchase its output, a move that could raise utility bills for NIPSCO and other utility customers across the state.

Leucadia Corp., a publicly traded New York-based investment firm, plans to build the $2.65 billion plant in Rockport, Ind. The Indiana Finance Authority will buy most of the synthetic natural gas the plant produces and then sell it to the state's utility companies.

Those utilities in turn will charge their customers for any difference in price between the synthetic natural gas produced by the plant and prices on the open market. There also are provisions to return some of the profits to utility customers if the synthetic natural gas costs less than gas on the open market.

From the other end of the state, Eric Bradner of the Evansville Courier & Press had this detailed April 22nd story.

John Russell of the Indianapolis Star posted a story on the IndyStar site at midday; it concludes:

The Indiana Utility Regulatory Commission approved the contract this morning between the plant's owner and the Indiana Finance Authority, and issued a certificate of public convenience and necessity for the construction.

Ind. Decisions - Supreme Court issues 2nd opinion today

We consider here whether the White Lick Creek Aquifer is a "watercourse" under Indiana law and, if so, whether the Home Rule Act permits the Town of Avon to regulate another political unit‘s attempt to withdraw water from the aquifer. We answer both questions in the affirmative, and further conclude that the Town of Avon‘s proposed regulation is not preempted by statutes authorizing the Department of Natural Resources to regulate aquifers. * * *

[I. Is the White Lick Creek Aquifer a “Watercourse”?]

As we discussed above, our state‘s common-law definition of watercourse has consistently held that whether a body of water has defined banks, bottom, and channel is not conclusive in determining if that body of water is a watercourse. We hold that the phrase "any other body of water" in Indiana Code § 36-9-1-10 refers to any other body of water satisfying our common-law definition of a watercourse. While that body of water‘s similarity to a lake, stream, or river would be informative, it would not be dispositive. This interpretation reflects the fact-specific nature of the inquiry and comports with our presumption that when the Legislature appears to modify the common law by statute, "it is aware of the common law and that its intention is to not change the common law beyond what the express terms of its enactments and fair implications allow." Midtown Chiropractic v. Ill. Farmers Ins. Co., 847 N.E.2d 942, 947 (Ind. 2006). * * *

While we stop short of declaring a bright-line rule that all aquifers are watercourses, we must reject the demand for a bright-line rule to the contrary8 Given the evidence presented, we conclude that the facts demonstrate that the White Lick Creek Aquifer is a watercourse under Indiana law. * * *

[II. The Home Rule Act]

In City of Crown Point * * * [we] held that the language "express statutory authority" permits a unit to enforce against another political subdivision "those regulations of general applicability which are specifically authorized by statute."

Avon contends that its authority to regulate the taking of water from a watercourse under the Watercourse Statutes is just such a specific statutory authorization. Therefore, Avon argues, it has authorization to enact a regulation of general applicability (the ordinance), and to impose duties under that ordinance on other political subdivisions. Because we conclude that the Aquifer is a watercourse under the Watercourse Statutes, we agree. * * *

[III. Conflict With, or Preemption by, State Regulations]

The Township and WCCD further argue that the ordinance is invalid because it regulates conduct that is already regulated by Indiana‘s Department of Natural Resources. The argument is two-fold: first, that the Home Rule Act prohibits the regulation of conduct that is already regulated by DNR except as expressly granted by statute, and second, that DNR has exclusive jurisdiction over underground water resources in the State of Indiana. * * *

While DNR‘s statutory authority is extensive, however, it by no means occupies the field with respect to the regulation of groundwater withdrawal. * * *

[IV. Common Law of Groundwater]

Finally, Appellees argue that Avon‘s ordinance interferes with their common-law right to use their groundwater as they wish. This contention, however, rests on the notion that the Aquifer is not a watercourse. * * *

[Conclusion] We reverse the trial court‘s denial of Avon‘s motion for summary judgment and remand.

The trial court appears to have erred in not awarding Brown credit for time served and credit time for days spent in jail before her actual entrance into the pre-conviction diversion program at the YWCA. In addition, the trial court erred in not awarding Brown credit time for days she spent in jail between her arrest for violation of the pre-conviction diversion program and her sentencing date. We reverse and remand with instructions that the trial court amend its sentencing statement in accordance with our holding.

The record is insufficient to support appellate review regarding the issue of whether Brown is entitled to credit and/or credit time for time spent in the pre-conviction diversion program. We remand with instructions.

Ind. Decisions - Tax Court posts two today, both dated Nov. 21st

Deborah Pollock and Marilyn Humbarger, as personal representatives of the Estate of Christine L. Neterer (Estate), appeal the Elkhart Circuit Courts '(probate court) entry of summary judgment against the Estate and in favor of the Indiana Department of State Revenue, Inheritance Tax Division (Department). On appeal, they raise one issue: whether the probate court erred in granting summary judgment in favor of the Department. * * *

A court may not assign a fair market value to property if that value is outside the range of values supported by the evidence. Balicki v. Balicki, 837 N.E.2d 532, 539 (Ind. Ct. App. 2005), trans. denied. In this case, the evidence demonstrates that the subject property, in its entirety, appraised at $855,250. One-half of that value, which reflects Neterer's undivided one-half interest in the property, is $427,625. Consequently, the record evidence supports the probate court's conclusion as to the fair market value of the subject property. For the foregoing reasons, the Court AFFIRMS the probate court's grant of summary judgment in favor of the Department.

A court may not assign a fair market value to property if that value is outside the range of values supported by the evidence. Balicki v. Balicki, 837 N.E.2d 532, 539 (Ind. Ct. App. 2005), trans. denied. In this case, the evidence demonstrates that the subject property, in its entirety, appraised at $855,250. (See Appellants' App. Vol. II at 22-29.) One-half of that value, which reflects Neterer's undivided one-half interest in the property, is $427,625. Consequently, the record evidence supports the probate court's conclusion as to the fair market value of the subject property. For the foregoing reasons, the Court AFFIRMS the probate court's grant of summary judgment in favor of the Department. * * *

[T]he lack of a final determination from the Department, which is the equivalent to the failure to exhaust administrative remedies, will act to deprive the Tax Court of subject matter jurisdiction in a case. * * *

Etzler's appeal is not an original tax appeal: it neither arises under the tax laws of Indiana nor does it appeal a final determination of the Department. Consequently, this Court lacks subject matter jurisdiction over Etzler's appeal and hereby GRANTS the Department's motion to dismiss.

Ind. Decisions - Supreme Court issues one today

A trial court found Lisa Gray guilty of possessing marijuana as a class A misdemeanor, but the Court of Appeals set aside the conviction on the grounds of insufficient evidence. We have accepted jurisdiction to reinstate the judgment. * * *

To be sure, finding contraband hidden from plain view on premises in which a defendant has a nonexclusive possessory interest when the defendant was not even present will not, without more, support a conviction on a theory of constructive possession. * * *

Here, there is no dispute that Gray had a possessory interest in the apartment, which is sufficient to establish her capability to maintain dominion and control over the marijuana. The evidence at trial, if credited, supplied additional circumstances that, combined with her possessory interest in the apartment, sufficiently establish her intent to maintain dominion and control over the marijuana.

Ind. Gov't. - More on "AG Zoeller concludes it is unconstitutional for a school corporation to require fees for school bus transportation even if the school system outsources bus service to another entity"

The Franklin Township board voted 3-2 Monday night to defend the action that has prompted protests over fees of at least $40 a month per child for bus service. WISH (Channel 8) and WRTV (Channel 6) report that some parents told the board it was a mistake to spend more money fighting the decision in court.

Courts - Might the health care litigation finally get SCOTUS to open up to cameras?

Ind. Gov't. - More on "The cost of Indiana education: An examination of 275 Indiana school superintendent contracts"

Updating this ILB entry from Nov. 20th on the three-part series by Thomas B. Langhorne of the Evansville Courier & Press, here now are Part 2 and Part 3. Here is a sample from Part 3:

Changes could be in store for Indiana school superintendents in the legislation session that will begin in January.

Sen. Jim Banks, R-Columbia City, a member of the Senate Education Committee, is considering what to include in a bill that he says will be part of a larger push to direct more education spending into classroom instruction and less on administration. Caps on superintendent salaries are no longer in the game plan for Banks, who believes that idea — unpopular with most legislators anyway — wouldn't have enough impact to move the needle.
Sen. Jim Banks, R-Columbia City, said he will dig into school districts' payments to superintendents.

Sen. Jim Banks, R-Columbia City, said he will dig into school districts' payments to superintendents.

Banks said he was unaware that, in an effort to keep published salaries low, school boards are giving superintendents the full cost of health insurance in cash, providing extra money for retirement accounts and collectively making more than $400,000 in mandatory payments annually on their behalf to a state pension fund.

The findings are part of a Courier & Press examination of 275 superintendent employment contracts, which were requested from each of Indiana's 289 school corporations with superintendents.

The extra taxpayer dollars are included in annual total compensation figures given to the Indiana State Teachers Retirement Fund and used to calculate monthly pension payouts.

Also today, the Fort Wayne Journal Gazette has an editorial headed "Full disclosure on school chief pay." A quote:

A survey of 275 school chief contracts by the Evansville Courier & Press found that salary figures reported often omit retirement and health insurance benefits paid out with salary. The benefits bolster the amount reported to the state teachers’ retirement fund, resulting in a higher monthly pension check.

The Courier & Press notes that it’s impossible to know how extensive the practice is because many contracts exclude salary information, and Indiana law does not allow disclosure of teachers’ retirement fund payouts. * * *

[O]versight of superintendent pay demands total transparency. Public salary discussions are awkward, but the money at issue comes from tax dollars. School boards must do more than approve a contract with no discussion and a quick vote.

Rep. Bob Behning, R-Indianapolis, offered draft legislation this past summer that would require school boards to disclose the total monetary value of their superintendents’ contracts at least 30 days before the contract is approved, posting the proposal online.

His idea is worth considering, and it should extend to contracts between school boards and charter school management organizations.

Also worth noting: Lawmakers pushing for more transparency of compensation packages should be prepared to disclose their own.

Just as some superintendents have bolstered their salary with additional benefits, lawmakers’ pension benefits are based on salary plus per diem and leadership payments.

Taxpayers are paying out more in retirement benefits than they bargained for.

In a period when private-sector pay and benefits are shrinking, public employees should expect their benefit packages to be fully transparent. Taxpayers understand that maintaining quality institutions requires fair compensation, but it must come with full disclosure.

Ind. Decisions - "Legislative leaders OK fix for cop entry ruling"

Republican and Democratic leaders of the Indiana House and Senate on Monday endorsed legislation to clarify Hoosier self-defense rights after a controversial Indiana Supreme Court ruling.

The General Assembly's Legislative Council unanimously approved a proposal allowing a person to use force under some circumstances to stop the illegal entry of a police officer into a home as long as the person does not know it is a police officer, the officer does not identify himself or herself as police and the officer is not wearing a badge or uniform.

The right to use force would not apply in domestic violence cases, if the officer believes a person is at risk of physical harm, when police are invited in by another resident, if the officer is in "hot pursuit," when police are tracking a fleeing suspect or if the officer has a warrant.

Approval by the Legislative Council, which consists of the top lawmakers of each party from both chambers, all but guarantees an easy route to passage for the legislation when the General Assembly convenes in January.

Stage Collapse - "Some State Fair victims left out of compensation fund"

A second distribution was made yesterday of funds in the State Fair Relief Fund - that is the fund made up of voluntary private contributions. Charles Wilson reports in this AP story:

Indiana State Fair officials said a relief fund for the victims of August's deadly stage collapse would distribute all the money it has Monday.

The fund has paid about $564,000 to 28 people, and the remaining $400,000 in the state-administered fund will be paid out on a prorated basis to people who have already received money, State Fair Commission chairman Andre Lacy said.

"The balance will be paid out today," Lacy said.

However, the State Fair Remembrance Fund -- which collects donations that are then distributed by the Relief Fund -- will continue to accept donations for about a year, and another payment might be made, fair officials said.

The fund, established within days after the accident, includes private funds donated by individuals, businesses and some musical groups scheduled to perform at the fair.

[Kenneth] Feinberg said 87 percent of the payouts have gone to families of people who died and those who spent 10 days or more in the hospital. He said it was fairest solution given the limited amount of money.

"We have done the best we could," said Feinberg, who is nationally recognized for overseeing victims' funds and settlements. "It is an attempt to come up with a formula that tries to do right by the injured."

Feinberg said 28 other people who requested compensation did not qualify. * * *

State Fair officials said the 28 qualified claimants would be the only ones eligible for future donations because the deadline has passed to file claims for eligibility.

The money is being paid according to a formula based on whether the victims died and how many days they spent in the hospital.

In the first payouts, families of the victims who died received about $35,000; those who spent 10 or more days in the hospital got $25,000; $7,500 went to those who spent four to 10 days in the hospital; and people who spent one to three days in the hospital got $3,000.

The additional $400,000 was distributed using the same formula, but the amounts for each victim were a little less because the sum payment was lower.

The money from the victims' relief fund is separate from the $5 million that victims will share from a state tort claim fund.

Bryan Corbin, a spokesman for the Indiana attorney general's office, said the 101 tort claims from 114 people have been filed for those awards.

He said the formula for compensation would be different from the relief funds but he did not know the specifics.

Under state law, the state's liability is limited to $5 million, and the most an individual can claim is $700,000.

Sandra Chapman's story on WTHR 13 last evening looks at victims left out. Some quotes:

The State Fair Commission decided it's worth a second round of payments for those who suffered most.

Unfortunately, it also means the injured, like stagehand Enoch Vinnegar who spent six hours in the emergency room after the stage collapsed with him in it, will not receive any of the remaining $400,000 donated by the public. * * *

Here's how the fund was dispursed:

A total of $978,000 was collected from public donations. A total of 56 people filed claims only 28 people received money. Previously they were paid $564,000.

Monday, that same group of claimants will split another $400,000.

"That suggests you left half the people walking away with nothing," 13 Investigates said.

"Don't assume that the people that didn't ask for a meeting were unsatisfied with the protocol," Feinberg responded, even though he said he couldn't be sure one way or the other.

The State Fair Commission says it reached out to the 28 denied to explain the rules.

Commission Attorney John Trimble says some of those who didn't qualify were missing critical documentation, or were not actual claimants. * * *

Most of the money paid out, nearly 87 percent went to the families of those who died and those with catastrophic injuries who required more than ten days hospitalization.

The State Fair Relief Fund will remain open for donations through October of next year. It's unclear at this time, how those donations or the $20,000 collected from text donations during the Sugarland concert will be handled.

The Attorney General's office is expected to release information about the negotiations for the State's $5 million liability fund in the coming weeks.

Law - Still more on: Municipal bankruptcy: How's that working out for you?

Updating this ILB entry from Nov. 20th, John Gramlich today authors a long and useful StatelineExplainer examining "what it means when a municipality files for Chapter 9 bankruptcy — and why states should care."

Monday, November 21, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Nov. 18, 2011 list.]

Stephen W. Robertson, Indiana Commissioner of
Insurance, as Administrator of the Indiana
Patient's Compensation Fund and The Indiana
Patient's Compensation Fund v. B.O., a minor, by
his parents and next friends, Lisa A. Ort and
Kevin C. Ort - This is a May 23, 2011 COA opinion where the COA stated the issue as "Whether the [Indiana Patient’s Compensation Fund] can introduce evidence concerning the existence and compensable nature of B.O.’s damages after B.O. entered into a settlement with the healthcare provider settling his claim of medical malpractice," and "conclud[ed] that, here, the Fund can present evidence allegedly establishing that B.O. does not have spastic diplegia or that his symptoms are not due to an insult at birth."

Sharon Gill, on her own behalf and on behalf of
the Estate of Gale Gill, Deceased v. Evansville Sheet Metal Works, Inc. - This is a Dec. 15, 2010 COA opinion, holding "Sharon’s claim was barred by the Construction Statute of Repose."

Ind. Decisions - Court of Appeals issues 4 today (and 4 NFP)

Personal Finance gave Jim Norris a loan. Norris failed to make payments on the loan, and Personal Finance filed a notice of claim against Norris in small claims court. A copy of the notice of claim was delivered by the sheriff to Norris's parents' address, and another copy was sent to that address by first-class mail. Norris failed to appear at the hearing on Personal Finance's claim, and the trial court entered default judgment against him. Norris filed a motion for relief from judgment, arguing that service of process was inadequate, the trial court lacked jurisdiction over him, and the default judgment was void. Following a hearing on Norris's motion, the trial court found that service to Norris's parents' address was adequate because Norris's parents had a duty under Indiana Trial Rule 4.16 to inform the court that Norris did not live with them. The trial court denied Norris's motion for relief from judgment.

Parents of competent adults are not included in the list of persons having authority to accept service under our trial rules. Further, Personal Finance did not introduce any evidence to show that Norris's parents were acting as his agents. In fact, Percy testified to the contrary. Tr. at 36. Accordingly, we conclude that the trial court erred in concluding that Trial Rule 4.16 applied to Norris's parents. Service by delivery to Norris's parents' address was not in compliance with Trial Rule 4.1 and thus was ineffective. * * *

We reiterate that because Personal Finance did not file an appellee's brief, Norris is required to present only a prima facie case that the trial court erred in denying his motion for relief from judgment.5 Given the standard of review in this case, we conclude that Norris has met his burden to show that the trial court erred in denying his motion for relief from judgment. Accordingly, we reverse the trial court's judgment.

Janice Davis appeals the trial court's decision to grant summary judgment in favor of Jennifer Culver and State Farm Insurance Company. Davis contends that there is a genuine issue of material fact as to whether State Farm's communications with her following a car accident and while she was receiving treatment were sufficient to trigger the theory of equitable estoppel and prevent State Farm from using a statute of limitations defense against Davis's claim. Finding no genuine issue of material fact, we affirm.

Adron Herschel Tancil v. State of Indiana - "The foregoing evidence, if believed, was more than sufficient to support the jury's determination that Tancil intended to kill Johnson and engaged in conduct that constituted a substantial step toward doing so. As such, we conclude that the trial court did not abuse its discretion in denying Tancil's motion for a new trial on the attempted murder charge. Therefore, we affirm."

Myron L. Johnson v. State of Indiana - "The alleged failure of Michigan and Indiana authorities to strictly comply with the Interstate Compact, particularly with respect to the conducting of a preliminary probable cause hearing in Michigan, did not deprive the trial court of either subject matter jurisdiction over Johnson's probation revocation or personal jurisdiction over him. Additionally, Johnson waived strict compliance with the Interstate Compact when he agreed as one of the terms of his probation to waive formal extradition proceedings. We affirm the revocation of Johnson's probation."

Law - "Law professors, at especially the “top” law schools, are becoming less connected to the legal profession"

That is a line from law prof Orin Kerr's comments today on the NYT article, "What They Don’t Teach Law Students: Lawyering," cited in this ILB entry this weekend.

Related is this commentary today, headed "Scholars’ Amicus Brief Controversy Reflects the Evolving Relationship Between the Bench and the Legal Academy," written by law prof Michael C. Dorf, referencing last week's NYT law column by Adam Liptak.

Chris Sikich has the lengthy, front-page story in today's Indianapolis Star. This definitely don't miss story begins:

In a 40-year law career, Richard Kammen has stood before judges and juries to defend people accused of despicable crimes.

He's represented a teenage boy suspected of killing a pregnant 16-year-old girl, a woman convicted of running a baby adoption scam and a former state trooper accused of cold-bloodedly murdering his wife and children.

Along the way, he's built a national reputation for defending people facing execution for their crimes. As recently as last year, he persuaded a jury to spare the life of a man convicted of gunning down an armored truck employee during a heist.

But the 65-year-old Kammen, known to colleagues as "Rick," may be facing his biggest challenge yet: He's the lead attorney for the accused terrorist charged in the planning and preparation for the attack on the USS Cole in October 2000, a bombing that killed 17 sailors and wounded several dozen others.

Abd al-Rahim Hussein Mohammed Al-Nashiri of Saudi Arabia is scheduled to stand trial in November 2012 in a military court at Guantanamo Bay, where he's being held with dozens of other suspected terrorists.

Many people and even some lawyers might recoil from having contact with someone associated with such evil. To Kammen, it's simply about seeing humans rather than crimes.

"I think you have to see people as more than the worst thing they've ever done," Kammen said. "I have seen people who have certainly been accused of doing horrific things, but who have shown tremendous courage and tremendous grace and really some sensitivity. I think people are more complex than how we want to simplify them."

Law - "All in Kentucky, Indiana must report abuse"

Updating several related ILB entries, Andrew Wolfson wrote a long story for the Sunday Louisville Courier Journal on the duty to report. Some quotes:

If a football coach, a teacher or, in fact, anyone in Kentucky or Indiana failed to report suspected sexual abuse of children to authorities, he or she would be breaking the law.

Unlike Pennsylvania, where coaches, doctors and other professionals are only required to report suspected abuse to their supervisor, Kentucky and Indiana mandate that such reports be made directly to police, prosecutors or Child Protective Services. * * *

Kentucky and Indiana also are among 18 states that require everyone and anyone — not just professionals who work with children — to report suspected abuse or neglect. * * *

In another case with similarities to the Penn State scandal, the Kentucky Supreme Court in 1998 reinstated charges against a teacher and counselor at Shepherdsville Middle School who informed a principal about allegations that another teacher had abused two sixth-graders — but didn’t make a report to police or state authorities.

The principal also didn’t report the allegations until a third girl was abused four months later.

Teacher Betty Allen and counselor Pamela Cook argued that, because Kentucky law requires supervisors who receive reports from employees to pass them on promptly to authorities, it would be redundant to require employees to do the same.

But Justice William Cooper wrote that, had the two women obeyed the law, the third victim “might have been spared.” He said the case represented “a perfect example” of why a report to a supervisor is insufficient.

The court also said multiple reports would show “the gravity of the situation” and give Child Protective Services workers more sources to contact during investigations.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/21/11):

Monday, November 21st

9:00 AM - Michael Sharp v. State of Indiana (12S02-1109-CR-544) -
Sharp was convicted of two counts of child molesting. The Clinton Superior Court sentenced him to an aggregate term of forty years and found him to be a credit restricted felon who will receive one day of credit time for every six days served. The Court of Appeals affirmed the conviction and sentence, indicating in part that it would not take into account a person’s credit restricted status when reviewing a sentence under Appellate Rule 7(B). Sharp v. State, 951 N.E.2d 282 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

9:45 AM - Jerrell White v. State of Indiana (15S01-1109-CR-545) -
After being convicted of theft in the Dearborn Superior Court, White was found to be an habitual offender based in part on a prior felony that he had committed when he was fifteen years old. The Court of Appeals reversed the habitual offender determination on grounds the State offered no evidence to show that the White had been charged and convicted of the prior felony as an adult. White v. State, 950 N.E.2d 1276 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

Next week's oral arguments before the Supreme Court (week of 11/28/11):

Thursday, December 1st

9:00 AM - Indiana Department of Revenue v. United Parcel Service, Inc. (49S10-1107-TA-417) -
The Department of State Revenue denied UPS’s claim for a corporate income tax refund for tax year 2000 and assessed UPS with additional tax liability for tax year 2001. On UPS’s original tax appeal, the Tax Court issued an unpublished order granting summary judgment to UPS. United Parcel Service, Inc. v. Indiana Dep’t of State Revenue, No. 49T10-0704-TA-24 (Ind. Tax Ct. 2010). The Supreme Court has granted a petition for review.

ILB: This was a Dec. 30, 2010 opinion by Judge Fisher, where the issue was: "whether, during the years at issue, UPS properly excluded from its Indiana corporate income tax returns the income of two of its affiliates because they were “subject to” the gross premium privilege tax (premiums tax) under Indiana Code § 27-1-18-2." The Tax Court reversed the DOR's "denial of UPS's claim for refund of corporate income tax for 2000 and its assessment of additional corporate income tax against UPS for 2001."

9:45 AM - Loparex, LLC v. MPI Release Technologies, LLC, et al. (94S00-1109-CQ-546) -
Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana certified the following questions of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on September 30, 2011. The questions, as framed by the district court, are:
(1) Is Wabash Railroad Co. v. Young, 69 N.E. 1003 (Ind. 1904), still good law, such that individuals who voluntarily leave employment are precluded from pursuing a claim under Indiana Code section 22-5-3-2?
(2) In an action brought under Indiana Code section 22-5-3-2, are attorney fees incurred in defending an unsuccessful claim against a former employee or in prosecuting a claim by a former employee recoverable as compensatory damages?
(3) Is an unsuccessful suit to protect alleged trade secrets, within which a former employer seeks to preclude any competitive employment of a former employee by pursuing permanent injunctive relief and in settlement negotiations, a basis for recovery under Indiana Code section 22-5-3-2?

10:30 AM - Sean Ryan v. Dee Anna Ryan (71S03-1111-DR-644) - Following a divorce decree in which the St. Joseph Circuit Court adopted the parties’ property settlement agreement, the former husband filed a motion for relief under Trial Rule 60(B), claiming that the agreement should be modified because circumstances prevented the parties’ homes from being sold, but the trial court denied the motion without a hearing. The Court of Appeals reversed. Ryan v. Ryan, 946 N.E.2d 1191 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This was a March 28, 2011 COA opinion where the panel ruled: "we conclude that the trial court abused its discretion in denying Husband’s motion under Rule 60(B)(8) without first holding an evidentiary hearing. We remand with instructions to conduct an evidentiary hearing at which the parties are given the opportunity to present evidence in support of or opposition to Husband’s motion for relief from judgment and for the court to grant relief as appropriate after considering the evidence presented at the hearing." See ILB summary here, 2nd case.

This week's oral arguments before the Court of Appeals (week of 11/21/11):

No arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 11/28/11):

Tuesday, November 29th

1:40 PM - Christopher A. Bryant v. State of Indiana (45A03-1101-CR-11) - Christopher Bryant was convicted of two counts of Class A felony dealing in a narcotic drug, Class A misdemeanor resisting law enforcement, and Class A misdemeanor marijuana possession and admitted to being a habitual substance offender, for which he received an aggregate sentence of forty-five years of incarceration. On appeal, Bryant contends that (1) he was denied effective assistance of trial counsel because his attorney failed to file a motion to suppress evidence obtained through an allegedly illegal search and seizure, (2) the trial court abused its discretion in denying his mistrial motion, and (3) the trial court bused its discretion in sentencing him. The Scheduled Panel Members are: Judges Riley, Darden and Bradford. [Where: Lawrence North High School, Indianapolis]

Wednesday, November 29th

1:30 PM - Indianapolis Education Association and President Elden Wolting v. Indianapolis Public Schools (49A02-1101-PL-27) - Indianapolis Education Association and its president, Elden Wolting, appeal the trial court’s order reversing the Indiana Education Employment Relations Board’s decision that Indianapolis Public School (“IPS”) had engaged in an unfair labor practice when IPS failed to collectively bargain the addition of twenty-five days to the school calendar for four IPS schools. The Scheduled Panel Members are: Judges Friedlander, Darden and Vaidik. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, November 20, 2011

Law - More on: Municipal bankruptcy: How's that working out for you?

Updating this ILB entry from Nov. 12th, which quoted a NYT story on the difficulties surrounding municipal bankruptcy, Dan Carden reports today in the NWI Times in this story headed "Ind. municipal bankruptcy bill unlikely to get another shot." Some quotes:

INDIANAPOLIS | One of this year's most controversial and complicated Statehouse proposals likely won't be on the agenda when state lawmakers return in January.

State Sen. Ed Charbonneau, R-Valparaiso, spent hundreds of hours last session trying to persuade legislators that in an era of constitutional tax caps, local governments facing deep budget deficits need a procedure to restructure their spending and, if unsuccessful, file for bankruptcy.

His plan, which would have allowed a financially distressed local government to ask the state to appoint an emergency manager with broad powers to adjust spending, cleared the Republican-controlled Senate but was killed by the Republican-controlled House.

Looking ahead to next year, Charbonneau said he's had the proposal redrafted just in case, but he doesn't expect to submit the legislation again.

"I just sense that there's not much of an interest in seeing that we try and get it passed this session," Charbonneau said.

The story references Lake Co. concerns about the way a Michigan law on the topic had been implemented.

Ind. Courts - More on "Alexandria mayor says city will not replace court judge"

Updating this ILB entry from Oct. 20th, Sam Brattain of the Anderson Herald Bulletin reported Nov. 19th in a story that includes the following:

ALEXANDRIA, Ind. — More details have come to light in the Indiana Supreme Court’s investigation of former Alexandria City Court Judge Brandy Goodman.

Last week Kathryn Dolan, public information officer for the Indiana Supreme Court said Goodman was being investigated by the court’s judicial qualifications commission for “her repeated administrative, constitutional, and ethical errors.” Also mentioned in the investigation were Goodman’s handling of cases against Mark Collett, 49. * * *

Due to a confidentiality agreement, Dolan could not say what prompted the investigation, however she did say there were other cases besides Collett’s. Goodman resigned as city court judge last October, as a result Dolan said the Supreme Court ended the investigation.

Goodman is not a licensed attorney, but as city court judge she had the authority to hear cases ranging from traffic violations to misdemeanor crimes. Members of the Indiana Senators recently authored a bill (Senate Bill 128) that would require all city and town court judges to have a law degree, however state Reps. Terri Austin, Jack Lutz, and Scott Reske said earlier this year they would not support the bill.

Dolan said the Supreme Court is also looking into the issue.

“What cases should non law trained judges hear? Should misdemeanors be heard in city court? We want to ensure all litigants receive fairness and impartiality, and professionalism,” Dolan said.

Law - "What They Don’t Teach Law Students: Lawyering"

The short version: "Law schools have long emphasized the theoretical over the useful, leaving law firms fairly resigned to training their hires how to actually practice law."

From a sidebar:

A Possible New Curriculum: What do corporate clients wish associates were taught in law school?

A better understanding of modern litigation practice, which is about gathering facts and knowing how to settle a case.

Greater familiarity with transactions law, including how to draft, evaluate and challenge a contract.

Deeper knowledge of regulatory law and the ability to respond to a regulatory inquiry or enforcement action.

Basic corporate legal skills, like how to perform due diligence.

Writing skills. Partners at law firms say they spend a lot of time improving the writing of their first- and second-year associates.

A stronger grasp of the evolving economics of legal practice, which will rely less on leveraging the time of new associates and more on entrepreneurship.

Some quotes from the must-read story itself:

Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime. * * *

Law schools’ aversion to all things vocational has been much debated, both inside and outside the academy. But critics are fighting both tradition and the legal academy’s peculiar set of neuroses.

“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”

This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education. * * *

It is widely believed that after lawyers have spent more than eight or nine years practicing, their chances of getting a tenure-track job at law school start to dwindle.

“Nobody wants to become a retirement home, or a place for washed-out lawyers,” says Kevin R. Johnson, dean of the law school at the University of California, Davis, who came to the meat market with six positions to fill.

This might seem a paradox — experienced people need not apply — but the academy views seasoned pros with a certain suspicion. In fact, a number of veterans of legal practice who failed to land tenure-track jobs say that experience was a stigma they could not beat.

“It can be fatal, because the academy wants people who are not sullied by the practice of law,” said a longtime lawyer and adjunct professor, who did not want to be identified because his remarks might alienate colleagues. “A lot of people who are good at big ideas, the people who teach at law school, think it is beneath them.”

The exceptions are those who teach legal clinics, which are programs where students learn to counsel clients (usually poor), draft documents and even litigate, all under faculty supervision. Legal clinics are a growing presence on nearly every campus, and many — like Washington University’s Law School in St. Louis and the CUNY School of Law in Queens — get high marks for quality and participation.

But a lot of these programs struggle with a kind of second-class status. Many are staffed, in whole or in part, by teachers who are not voting members of the faculty, and the programs are often modest. A soon-to-be released study of clinical programs by the Center for the Study of Applied Legal Education found that only 3 percent of law schools required clinical training.

Ind. Gov't. - "The cost of Indiana education: An examination of 275 Indiana school superintendent contracts"

Thomas B. Langhorne of the Evansville Courier & Pressreports today on "a Courier & Press examination of 275 superintendent employment contracts, which were requested from each of Indiana's 289 school corporations with superintendents."

Today's story is the first of a three-part series. Accompanying the stories are "PDF links to each Indiana school system superintendent's contract for the 2011-12 school year."

The C&P has also produced a database based on the information in the contracts, but it apparently is not yet completed. Here is what is currently available; there are some problems as of this look ...

The C&P notes: "This is an ongoing effort as we intend to maintain this database and post new contracts as new superintendents are employed."

Environment - "McDonald's, Target drop egg supplier Sparboe Farms"

MINNEAPOLIS - McDonald's and Target dropped one of the nation's largest egg suppliers after an animal rights group released an undercover video of the egg producer's farms in three states.

McDonald's Corp. said Friday it had dropped Sparboe Farms as a supplier after a video by the group Mercy for Animals showed cases of animal cruelty at five facilities in Iowa, Minnesota and Colorado. Target Corp. soon followed, saying it would pull eggs from the Litchfield, Minn.-based company off its shelves. * * *

The nation's largest retailer - Bentonville, Ark.-based Wal-Mart Stores Inc. - also buys Sparboe eggs and has been demanding that suppliers treat their chickens humanely for years. Wal-Mart said it stopped working with Sparboe six weeks ago and that its decision had "nothing to do with animal welfare concerns," said Dianna Gee, a Wal-Mart spokeswoman. She declined to discuss why Sparboe was dropped, citing company policy.

McDonald's and other fast-food chains and grocery stores have been studying how chickens are caged and cared for in its egg farms. The Humane Society has persuaded several national food outlets, including Burger King, Costco Wholesale, Denny's and Wendy's/Arby's Group, to buy at least some of their eggs from producers that allow hens to roam.

McDonald's and Target's moves also followed a warning letter to Sparboe Farms dated Wednesday from the U.S. Food and Drug Administration that said inspectors found "serious violations" at five Sparboe facilities of federal regulations meant to prevent salmonella. The warning said eggs from those facilities "have been prepared, packed, or held under insanitary conditions whereby they may have become contaminated with filth, or whereby they may have been rendered injurious to health."

Updating this ILB entry from Nov. 4, 2011, Vivian Sade of the Fort Wayne Journal Gazette writes in a story dated Nov. 18th:

The Allen County Council rescinded three last-minute decisions that would have cut judges’ and magistrates’ pay and doubled the contributions that sworn police officers make to their retirement funds.

The decisions – made in October after budget hearings were conducted in September – drew criticism from department heads and several council members. * * *

Allen County judges, who receive the bulk of their pay from the state, would have each received a $5,000 annual cut in pay after the county subsidies were eliminated. Magistrates also would have been affected, with each taking a $4,000 hit to their salaries. The state pays county judges $125,647 annually. The Indiana Constitution forbids cutting the pay of a Circuit Court judge in midterm.

The legality of the decisions was questioned immediately by court officials and members of the Allen County Sheriff’s Department Merit Board, which oversees the officers’ retirement fund.

Saturday, November 19, 2011

Updating this ILB entry from March 8, 2011, headed ""Ex-Muncie Central principal charged over handling of rape case","WRTV6's Joanna Massee had a story last evening, Friday Nov. 18th on the upcoming trial. Here are some quotes; the video is also available:

Christopher Smith, 42, was charged in March, months after a student was raped at the school in November 2010.

Prosecutors claim that the girl was told to sit in the principal's office for more than two hours and asked to write a report about her claims after she told school officials about the assault.

Administrators at the school didn't notify police or child welfare officials of the incident right away, prosecutors allege.

"One of the statute's crucial terms -- 'immediately' -- is so vague in its application that no ordinary citizen could determine when criminal culpability might attach, thus leaving the definition of the term to the whim of the police or prosecutor," Smith's attorneys argued in a court brief.

But Indiana University Law professor Joel Schumm discounted that defense.

"Immediately, I think everyone understands is very quickly, whether it's, you know, 10 seconds or a minute and a half, I think everyone would agree it's less than four hours," he told RTV6's Joanna Massee.

The filing also makes mention of the Penn State child abuse case that led to the dismissal of legendary football coach Joe Paterno.

"Recent events at Penn State demonstrate that even when law enforcement agrees that an individual properly reported a case of child abuse, as the Pennsylvania State's attorney acknowledged was done by coach Joe Paterno, the court of public opinion may nevertheless cause one to suffer consequences," the filing read.

Schumm agreed that sometimes the emotions surrounding a case can distract from the law.

"I think this is one of those kinds of things where everyone is thinking Paterno and it's so bad when people don't report things, so why don't I just put that out there and suggest there's lots of emotions about this and we need to focus on the law instead," he said.

Courts - "Storied high court: Justices bring life to oral arguments"

Oral arguments, which run October to April and are devoted to the dueling sides of a case, offer a window into the justices, their thinking and their personalities. Unlike written opinions, which mainly reveal a justice's legal and ideological approach in scholarly terms, oral arguments lay bare quirks and personal traits. There are moments of spontaneity from the raised mahogany bench that one would never see in a written opinion.

Substantively, many dynamics are at play. The justices probe the claims of the two sides. Yet they also use argument sessions to telegraph what they think of a dispute and perhaps begin persuading colleagues. And as has been evident in recent hearings, the justices sometimes turn to personal experience to make their points.

Ind. Courts - "Hammond city judge admits fault, accepts suspension "

HAMMOND | City Judge Jeffrey Harkin has agreed to serve a 60-day suspension from public office to resolve civil disciplinary charges leveled against him by state judicial officials.

The Indiana Supreme Court issued a written order Friday saying Harkin will give up his judicial salary during the suspension period and will pay the state for the cost of bringing evidence against him that he violated state laws and the Indiana Code of Judicial Conduct.

The state is dismissing one of three counts it lodged against Harkin under this week's agreement, which Harkin signed before the Nov. 8 general election where voters re-elected him to a new four-year term. Harkin has been city judge since April 2001. * * *

Harkin admits in this week's agreement he violated judicial code requiring him to be patient, dignified and courteous and not to coerce parties into a settlement.

The state agrees Hammond City Court's traffic school had been under way for decades under earlier judges, although the state didn't express any concerns about its operation to the prior judges. The state warned Harkin he had no authority to conduct the school as he did.

The Indiana Supreme Court said it will issue an opinion in the near future specifying when the suspension is to begin.

Friday, November 18, 2011

Nobody is perfectly happy with the updated rules for Indiana CFOs and CAFOs approved last week by the Water Pollution Control Board. But an Indiana ag attorney says at least everyone had a seat at the table during the process.

The new CFO regulations go into effect July 1st, 2012 and Todd Janzen says there are noticeable changes that will immediately impact producers.

“A couple of those which have been talked about at great length are phosphorous limits for land application and also manure prohibitions for application in the winter months on frozen or snow covered ground,” he explained.

Starting in July those phosphorous limits for land application for Indiana CFOs will be gradually phased in.

This petition for the extraordinary
writ of mandamus presents an important question
concerning the management of appeals in multidistrict
litigation under 28 U.S.C. § 1407 when portions
of some cases must be returned to their original
transferor courts. In this case, the Judicial Panel on
Multidistrict Litigation (JPML) chose one of two alternative
courses. The JPML chose to ensure that each case produces one appeal of all issues in that case, rather
than using partial final judgments under Federal Rule
of Civil Procedure 54(b) to ensure that all related
appeals would go to the same circuit. As we explain
below, we agree with the JPML that there are strong
arguments for both sides of this procedural dispute, and
we defer to the JPML’s exercise of its discretion in this
matter. In terms of the standards for issuing writs of
mandamus, we find that the petitioner has failed to
show that it has a clear and indisputable right to
issuance of the writ, so its petition is denied.

Ind. Gov't. - "Twenty-seven civilian employees to lose IMPD jobs"

The story, reported by William J. Booher and Chris Sikich in today's Indianapolis Star, caught my eye in light of earlier ILB entries on computers taking over traditional jobs. And that looked to be the case, at least at the start of today's story:

Twenty-seven civilian employees in the Indianapolis Metropolitan Police Department were told Thursday that they would lose their jobs at year's end in a cost-cutting move that will save $1.1 million.

City Attorney Greg Clark said the employees transcribed police reports and that work has now become automated. The positions never were funded in the city's 2012 budget, which the City-County County approved Oct. 17.

But later in the story, the reason becomes more cloudy:

About three months ago, [Andrea] Skinner said, many of the transcriptionists -- who helped produce police reports as well as statements from suspects, witnesses and victims -- had been given other assignments.

Skinner said she had worked for IMPD for more than four years as a transcriptionist until the change in duties. At that time, many of the transcriptionists were given other duties, such as working with criminal records or in the property room or at the auto desk at the City-County Building, she said.

The removal of transcriptionists also likely will affect the police departments for Cumberland, Speedway, Butler University, Indianapolis Public Schools and Indiana University-Purdue University Indianapolis because IMPD workers had been doing their transcribing, Skinner said.

Lately, IMPD's own officers have been doing more and more of their own transcribing, Skinner said. They will have to do all of the work next year, she was told.

Courts - "Church Turns to Higher Authority in Zoning Battle"

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”)is the focus of a lengthy story $$$ by Jess Bravin, dated Nov. 16th, in the WSJ. A quote:

Such battles are playing out across the U.S., from Litchfield, Conn., where officials argue that quintupling the size of an 1870s building to house a synagogue would mar the historic downtown, to Yuba City, Calif., where a county supervisor opposed a Sikh temple in an agricultural zone for interfering with the "right to farm."

In each case, the arguments are much the same: The religious group says federal law entitles it to do what its faith commands on its property, while cities, fiercely guarding their zoning powers, resist federal interference in decisions that affect local character and economic development.

The issue touches on some of America's fundamental legal principles. The Constitution limits Washington's power over state and local government. Yet it also grants Congress authority to enforce fundamental rights, including freedom of religion, and to regulate interstate commerce, which courts have interpreted broadly.

Invoking those powers, a Republican-controlled Congress in 2000 required states and cities to elevate religious use above other planning goals.

That law, signed by President Bill Clinton, reflected widespread political support for religious freedom. It was co-sponsored by two ideological opposites, Sen. Orrin Hatch, the Utah Republican, and the late Sen. Edward Kennedy, Democrat of Massachusetts, who said they found "massive evidence" that local governments were discriminating against religious groups.

But opposition to the law also crosses ideological lines and includes business groups and local governments, which say Congress relied on a few anecdotes to paint a misleading picture of intolerance.

Ind. Gov't. - "Legislators reject plan to 'simplify' state laws"

INDIANAPOLIS | State lawmakers have turned down a plan intended to make the Indiana Code more understandable by using city and county names in the law instead of descriptions based on an area's population.

On Thursday, the Legislature's Census Data Advisory Committee affirmed Tuesday's decision by the Code Revision Commission to update existing population descriptions using 2010 U.S. Census data, rather than eliminate population descriptions altogether.

Legislators use population descriptions to write laws that affect only one city or county, an action that is technically prohibited by the Indiana Constitution, which requires all laws to apply statewide.

For example, Indiana law never identifies Lake County as Lake County; it is always "a county having a population of more than 400,000, but less than 700,000."

That description enables a Lake County-specific law, such as the law setting membership qualifications for the Northwest Indiana Regional Development Authority, to pass constitutional muster because the law technically applies to any county meeting the population parameter, even though no other county does.

State lawmakers this summer seemed open to a suggestion by the nonpartisan Legislative Services Agency that locality names replace population descriptions, but concerns that courts would strike down special laws led to this week's decision to just update the relevant population data.

State Rep. Shelli VanDenburgh, D-Crown Point, was the only lawmaker on both committees who voted to eliminate population descriptions.

"I just believe in the interest of transparency, not only for us as legislators but for the people we serve; they should know what cities and towns we're referring to," VanDenburgh said.

ILB: I watched the very interesting discussion about this proposal at the Nov. 15th meeting of the Code Revision Commission. It is #7 on the agenda, "Population Parameters in the Indiana Code." The discussion was a carry-over from the Oct. 18th meeting.

Ind. Decisions - "Judge will stay on in Simon estate lawsuit"

The Court of Appeals of Indiana today dismissed Bren Simon’s attempt to remove the Hamilton County judge who is overseeing a lawsuit over her late husband’s estate.

The appeals court said Bren Simon doesn’t have legal standing to request the judge’s ouster because he had earlier replaced her as personal representative and trustee of the estate, valued at over $1.8 billion.

“Once a personal representative has been removed, the former representative lacks authority to prosecute an appeal of the removal order,” the appeals court said in its 16-page decision.

Ind. Decisions - Two today from Supreme Court

In this case we conclude that the Worker’s Compensation Act is silent on the question of the limitation period applicable to a medical provider’s claim seeking payment of outstanding bills for authorized treatment to an employer’s employee. We thus hold that the limitation period contained in the general statute of limitation controls. * * *

ISG contends that because the Act provides no express limitation period governing a provider’s Application to recover pecuniary liability, the general statute of limitation enumerated in Indiana Code section 34-11-1-2 should apply instead. That statute provides in part “A cause of action that . . . is not limited by any other statute[,] must be brought within ten (10) years.” Ind. Code § 34-11-1-2. * * *

Without deciding precisely when the ten-year statute of limitation began running against ISG, we hold that in this instance ISG timely filed its Application before the Board.

Conclusion. Because ISG’s claim is timely under Indiana Code section 34-11-1-2, we conclude that the Board erred by dismissing ISG’s application. We therefore reverse the Board’s decision and remand this cause for further proceedings consistent with this opinion.

At a dispositional hearing, the juvenile court imposed on the delinquent child a determinate commitment of two years at the Department of Correction to be followed by an indeterminate commitment. We hold that the determinate and indeterminate commitment statutes in question are unambiguously mutually exclusive, and thus the trial court could impose only one of the commitments on the delinquent child. We reverse the trial court's dispositional order and remand to the trial court to decide, in its discretion, which type of commitment is appropriate.

Melvin Simon died in 2009, and Bren Simon, his surviving spouse, was named Personal Representative of the Estate of Melvin Simon (“the Estate”) and Trustee of the Melvin Simon Family Enterprises Trust Agreement (“the Trust”). Bren brings this interlocutory appeal as Personal Representative and Trustee from the trial court's order denying her notice of objection in which she requested that the trial judge disqualify himself from a will and trust contest and a declaratory judgment action, both cases pending in the Hamilton Superior Court and which have been consolidated in this interlocutory appeal. The trial court also granted motions by Deborah Simon, Melvin's daughter, to remove Bren as Personal Representative and Trustee. The court then appointed a Successor Personal Representative and Trustee, who is not participating in this appeal. We conclude that when Bren was removed as Personal Representative and Trustee she lost her authority to pursue this appeal in a representative capacity, and Bren was not a party in her individual capacity in the trial court. Accordingly, we hold that Bren lacks standing to maintain this appeal in either a representative capacity or an individual capacity. Thus, we are without jurisdiction to consider this appeal on the merits, and we dismiss. * * *

MAY, J., concurs.
RILEY, J., dissents with separate opinion [that begins at p. 17 and that concludes] At the center of the dispute is the validity of the revised will, which will result in Bren either gaining or losing a considerable portion of her deceased husband's estate. When the presiding Judge in this battle hired the law firm who is also representing one of Bren's opposing parties in the Trust Dispute to defend his interests before the Indiana Judicial Qualifications Commission, it is understandable that Bren questioned the Judge's impartiality, and pursued Judge Hughes' refusal to recuse himself on appeal.

The majority's decision is a disservice to justice. Accepting the majority's premise that Judge Hughes' decision to remove Bren as Trustee and Personal Representative, standing alone, results in Bren losing standing in the current appeal, which was initiated prior to Judge Hughes' removal Order, a trial court could effectively shield itself from judicial scrutiny by removing or dismissing a party seeking the trial court's recusal. In reaching this conclusion, the majority clearly affirmed Appellees' argument which was raised as a red he9rring in their brief in order to obscure the pertinent issue before us. Unfortunately, the majority took the bait.

In sum, nothing in the record supports a conclusion that there was a fiduciary relationship between Doe and the Archdiocese. Doe did not place any special confidences in the Archdiocese or otherwise seek out a confidential relationship. In fact, Doe maintained an adversarial relationship and consulted with attorneys to provide her with guidance concerning her dealings with the Archdiocese. Therefore, because no fiduciary relationship existed, there can be no breach of fiduciary duty. As a result, the trial court properly entered summary judgment for the Archdiocese with regard to this claim.

Here, we are confronted with whether punishment exacted by a branch of the United States Armed Forces on one of its members for conduct off-installation in Indiana prevents the State from prosecuting the individual for that same conduct. We are asked to conclude that it does without a complete record as to the nature of or grounds for the military punishment. In instances such as this, a complete record is essential not just to determine whether the military punishment was, in fact, for the same offense, but also because it may have been non-judicial in nature. Accordingly, where, as here, the defendant fails to provide a complete record, we decline to conclude that the action taken by the military prevents the State from prosecuting the defendant for the same conduct.

Appellant-defendant David Hoffman appeals the trial court’s denial of his motion to dismiss pursuant to Indiana Code section 35-41-4-5 (double jeopardy statute). More specifically, Hoffman argues that the trial court erred in determining that action taken by the United States Army (Army) did not bar the State’s charge of Operating a Motor Vehicle While Intoxicated,1 a class A misdemeanor. Because the State has already tried and convicted him on the charge, we consider whether Hoffman’s conviction violates the double jeopardy statute. Concluding that Hoffman has failed to show that the Army has already prosecuted him for the same offense, we affirm his conviction.

Lindell Patterson v. State of Indiana - "For all of these reasons, we conclude that the protective pat-down search of Patterson‟s person and the ensuing seizure of the marijuana from Patterson's pocket fell within the bounds of the Fourth Amendment to the United States Constitution. Patterson also asserts that the search and seizure violated his rights under Article 1, Section 11 of the Indiana Constitution, but he presents no authority or independent analysis supporting a separate standard under the Indiana Constitution. He has therefore waived any state constitutional claim."

I respectfully dissent and part ways with the majority's view that the trial court “abused its discretion when it failed to acknowledge Caraway's guilty plea” as a mitigating factor. Thus, I do not believe that resentencing is required in this instance.

Insufficient evidence was presented as to Brent's possession of marijuana, and therefore we reverse his conviction of the same. The State concedes it did not present sufficient evidence to sustain his conviction of visiting a common nuisance, and we also reverse that conviction.

Lauri Harvey Keagle and Lu Ann Franklin have this story today in the NWI Times. It begins:

MUNSTER | The Porter County Chapter of the Izaak Walton League of America is urging the Little Calumet River Basin Development Commission to replace wetlands as part of its flood control project.

Izaak Walton League representatives said wetland mitigation is required under state permits issued for construction of levees and the flood control project. At a Little Calumet River Basin Development Commission meeting Wednesday in Munster, league representatives were told a Sept. 29, 2012, deadline to complete the project has been extended until December 2014.

Sandy O'Brien, an Izaak Walton League member, said the work is essential to the 1,000-acre Hobart marsh just south of the river near Interstate 65.

O'Brien said the work will "maximize the ecological and recreational benefit" by connecting land that is already protected.

"We urge the Little Cal commission to elevate the mitigation in priority and to place it on their agenda at every meeting until the mitigation is completed," said Jim Sweeney, Izaak Walton League president.

“The permits to the commission to build their levees and flood control project require the wetland mitigation be completed by Sept. 29, 2012,” said board member Tom Anderson.

Wetland mitigation is the restoration of wetlands in one place for those that were destroyed by a project in another. Anderson continued, “The Little Cal Commission hasn’t started the mitigation yet so they will not meet the deadline.”

The group maintains that the work is required by the Construction in a Floodway permit from the Indiana Department of Natural Resources Division of Water and the Section 401 permit from the Indiana Department of Environmental Management.

Member Sandy O’Brien said the mitigation is essential to the “Hobart Marsh” area, part of a 1000 acre natural area complex just south of the river near I-65. She said the mitigation can enhance the area and “maximize the ecological and recreational benefit” of the mitigation by connecting existing protected conservation land.

The Porter County Chapter of the Izaak Walton League has been involved with the planning and design of the flood control project since the Commission was formed in the 1970’s said past chapter president Herb Read.

Members met recently with First District Congressman Pete Visclosky and asked him to remind the Commission that they will need local funds to secure the federal portion of the cost of mitigation. They also reminded him that a recreational component was added in 1977 to obtain a favorable cost/benefit determination from the US Army Corps of Engineers.

President Jim Sweeney said, “We urge the Little Cal Commission to elevate the mitigation in priority and to place it on their agenda at every meeting until the mitigation is completed.”

“The construction project is nearing completion,” said Anderson, “so should the mitigation. It is required by the law.”

Ind. Decisions - Re "the value of a crystal-clear record of the parties’ consent to have a magistrate judge preside over their case under 28 U.S.C. § 636(c)"

An opinion today out of Illinois is of interest because of its introduction. In Allan Stevo v. Pamela Frasor (ND Ill) Judge Hamilton writes:

This appeal is a reminder of
the value of a crystal-clear record of the parties’ consent
to have a magistrate judge preside over their case under
28 U.S.C. § 636(c), especially when the magistrate judge
assignment changes. Such a change occurred here, and
the documentation of the consents to the new magistrate
judge leaves something to be desired.

We reject these arguments. But we agree with the Robertsons’ final argument, that the sentencing judge failed to consider adequately their unusually strong evidence of self-motivated rehabilitation. For this reason, we vacate their sentences and remand for resentencing.

If former Indiana state Trooper David Camm is tried a third time in the murders of his wife and their two children, Floyd County Prosecutor Keith Henderson should not be involved, an Indiana appeals court has ruled.

The unanimous, three-judge panel ruled that a special prosecutor should replace Henderson because he entered a book deal to write about the case while Camm’s second conviction was being appealed.

The panel called that deal, which has since been canceled, “an irreversible, actual conflict of interest with his duty to the people of the state of Indiana.”

Henderson issued a statement that he is reviewing the ruling with the office of Indiana Attorney General Greg Zoeller, which handles criminal appeals.

A Zoeller spokesman said the office will review the case to decide whether to appeal to the Indiana Supreme Court, and it has 30 days to do so.

This session will explore how Indiana judges are selected, the funding of courts,
federal and state constitutional challenges, and the methods courts use
in interpreting statutes. Audience participation will be encouraged
through use of remote keypads and open discussion of recent cases.

2:40-3:50 p.m. - When Rules Become Laws: the Powers of State Government

This session will explore rulemaking and adjudication by state administrative agencies.
This session will also have a strong emphasis on environmental law,
one of the most government-regulated areas of law and will provide some helpful tips
to resolve environmental issues in your district.

4:00-4:50 p.m. - Let’s Put it in Perspective

An interactive session putting participants in the roles of administrative law judges,
lawyers for the state and lawyers for the private parties. In this session, participants
will address a fact situation from a legal perspective.

Moderator for the Day
Daniel B. Seitz, Indianapolis
Chair, ISBA State Legislation Committee

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

Geneva-Roth Ventures, Inc. d/b/a LoanPoint USA (LoanPoint USA) appeals from the trial court’s denial of its Motion to Stay Proceedings and Compel Arbitration in a putative class action lawsuit filed by Akeala Edwards on behalf of herself and a purported class of Indiana residents who obtained small, short-term pay-day loans from LoanPoint USA. LoanPoint USA presents the following issue for our review: Did the trial court err in denying LoanPoint USA’s motion to compel arbitration on the basis of impossibility of performance? We affirm. * * *

Having concluded that the NAF [National Arbitration Forum]as the arbitral forum was integral to the arbitration agreement, and given that the NAF is no longer available to conduct consumer arbitrations, the arbitration provision is null and void on grounds of impossibility. Section 5 does not save the arbitration provision and cannot be used as a mechanism to appoint a substitute arbitrator. The trial court did not err in denying LoanPoint USA’s motion to compel arbitration.

Appellant-Defendant Green River Motel Management of Dale, LLC (“GRMM”), appeals from a judgment in its favor in the amount of $288,000 following Appellee-Plaintiff the State of Indiana‟s taking of 3.983 acres of GRMM‟s land. * * *

On June 4, 2009, GRMM filed for summary judgment, asking the trial court to rule as a matter of law that the proper measure of damages to which it was entitled was the difference between value of the entire parcel before the taking and after. In the memorandum attached to the summary judgment motion, GRMM argued that the economic impact on its business resulting from moving the interchange amounted to a compensable taking under the United States and Indiana constitutions. On January 28, 2010, the trial court denied GRMM‟s summary judgment motion. * * *

GRMM contends that the alteration of access to its property caused by the relocation of the interchange resulted in losses such that a taking has occurred and that it designated undisputed evidence to that effect, entitling it to summary judgment. In essence, this is an inverse condemnation claim, although not designated as such. “Inverse condemnation is a process provided by statute that allows individuals to be compensated for the loss of property interests taken for public purposes without use of the eminent domain process.” Ctr. Townhouse Corp. v. City of Mishawaka, 882 N.E.2d 762, 770 (Ind. Ct. App. 2008) (citing Ind. Code § 32-24-1-16), trans. denied.

“It has long been recognized that the right of ingress and egress is a property right which cannot be taken without compensation.” Jenkins v. Bd. of Cnty. Comm’rs of Madison Cnty., 698 N.E.2d 1268, 1270 (Ind. Ct. App. 1998), trans. denied. On the other hand, however, “although an elimination of rights of ingress and egress constitutes a compensable taking, the mere reduction in or redirection of traffic flow to a commercial property is not a compensable taking of a property right.” Kimco, 902 N.E.2d at 214. “The general rule is that there is no property right of an abutting property owner in the free flow of traffic past his property and thus no compensation can be claimed if traffic is diverted from his premises or made to travel a more circuitous route.” * * *

Here, GRMM designated no evidence in support of its summary judgment motion tending to show that any interference to ingress or egress occurred by virtue of State action. The means of ingress/egress is as it ever was–from the road that was formerly U.S. 231 and now is Old U.S. 231. At most, the designated evidence tends to show that motorists would have to travel a more circuitous route to reach GRMM‟s property, but as Kimco makes clear, this is insufficient to establish a taking. GRMM designated a great deal of evidence that its Motel 6 business has been significantly damaged by the relocation of the interchange, and we have no reason to doubt that this is true. Such damage is, however, not compensable if it is due solely to diverted traffic as a matter of law, and that is all that GRMM‟s designated evidence indicates. * * *

The judgment of the trial court is affirmed.

ROBB, C.J., concurs.
BARNES, J., concurs with opinion: I write to concur in full and to acknowledge the precedent our supreme court articulated in State v. Kimco of Evansville, Inc., 902 N.E.2d 206 (Ind. 2009). As the author of the Court of Appeals decision reversed by that opinion, one does not have to be Carnac to realize I disagree. However, our supreme court has spoken, and I concur.

Ind. Gov't. - "Indiana pensions: A state secret"

INDIANAPOLIS (WISH) - During the last fiscal year, Indiana's public retirement system paid out more than $2.3 billion in benefits to nearly 120,000 Hoosiers. But, after months of investigation, I-Team 8 found out some could be taking home much bigger payouts than many of us could imagine. * * *

In neighboring Illinois alone, a recent investigation by the Better Government Association (BGA) and Chicago based Taxpayers United of America (TUA) shows more than 10 percent of retired politicians have already collected over $1 million in pension payments each. TUA says it uncovered government records showing 5,294 government retirees in Illinois who currently receive annual pension payments of over $100,000.

After exposing serious concerns about a shortfall of nearly $14 billion in the funds used to pay for the retirements of public workers in Indiana, I-Team 8 wanted to see if some Hoosier retirees receiving similar pension payments here too. So, we spent months working sources and combing through documents to find out.

Almost immediately, we hit a legal roadblock.

"We are only allowed to give information regarding a person's name and their years of service in the fund. Anything else is prohibited by law for us to release,” replied Jeff Hutson, Communications Director for the Indiana Public Retirement System (INPRS) to I Team 8’s request for documents outlining pension payments to public employees and officials in Indiana.

That law is House Enrolled Act 1285, passed by the Indiana General Assembly and signed by former Governor Joe Kernan (D) in 2004. At the time, Kernan said the measure would help protect public employees from having their private information used by criminals. But, it also left taxpayers with no way of tracking billions of dollars in benefits paid out from the state’s publicly funded retirement system every year.

“The law currently makes so much of the information secret that it's virtually pointless to look at,” said Dr. Tony Fargo, Indiana University Associate Professor of Journalism, who teaches a continuing legal education course at the Indiana Statehouse for legislators, legislative employees and state agency attorneys.

ILB: There is much fascinating history in the ILB about the sealing off of pension records, here is just a sample:

Ind. Gov't. - Still more on "Legislative panel reviewing possible state purchase of iPads for Indiana lawmakers"

Updating this ILB entry from Sept. 9th, Rick Callahan of the AP reports in a story headed "Indiana legislative panel endorses test of iPads." Some quotes:

INDIANAPOLIS (AP) — An Indiana legislative panel endorsed a pilot program Monday that would equip two General Assembly committees with iPads in the upcoming session as part of a push to cut the amount of paper used to print copies of bills for lawmakers.

The Legislative Council’s data processing subcommittee voted 3-0 Monday to endorse a report asking the full council to embrace the pilot iPad project. The 16-member council will consider that and other suggested technology upgrade recommendations at its Nov. 21 meeting.

Republican Sen. Brandt Hershman of Lafayette, who chairs the panel, said it heard compelling testimony Monday that about 250 pounds of paper is printed out for each of Indiana’s 150 lawmakers each session in the form of various versions of bills and amendments. * * *

He said he’s going to recommend that the Senate Tax and Fiscal Policy committee adopt iPads for the pilot project. Hershman said the House Education committee could be the pilot committee in the House if the council approves the project.

All 100 of Indiana’s House members and its 50 state senators are already assigned a laptop for use in their legislative duties. Hershman said he knows of only one lawmaker, whom he declined to name, who does not use their laptop.

The subcommittee’s four members each received iPads earlier this year and have spent several months using the popular Apple tablet to determine how easy they are to use.

Senate Minority Leader Vi Simpson, a Bloomington Democrat who’s on the subcommittee, said that although she had some learning to do when she received her iPad, she now uses it considerably more than she does her state-issued laptop. * * *

She also believes that if she and her colleagues do embrace iPads, the change will simplify the legislative process and make updated bills more quickly available to the public.

“Right now it’s just so complicated: There’s so many changes and so much paper that you have to get. But this could simplify things for the public as well as for us,” she said.

ILB: What those inside the Statehouse who still rely on printed copies of bills may not understand is that the rest of us have been relying solely on the digital versions of all the "paper" for years, and have been reading them via our laptops. Copies of the various versions of each bill, its amendments, committee reports, roll calls, etc., have been available through the General Assembly's own, excellent website for over ten years.

Updating this ILB entry from Nov. 4, 2011, the Fort Wayne Jounral Gazette today has an editorial headed "Crackdown on CAFOs." Some quotes from the long editorial:

[The new rules include] the phosphorus content of soil in the governing criteria for how much manure can be applied to fields. Traditionally, farmers based manure application only on nitrogen concentration. But phosphorus runoff into waterways causes toxic algae blooms, like the one that shut down Grand Lake St. Marys last year.

The new rules also require stormwater management plans from all farms. That means farmers have to consider where the runoff from their farm goes and any potential problems. The rules added a 400-foot setback between CFOs and residents, but the environmental groups wanted state officials to include schools, churches and other public buildings. They argued a 1,500-foot setback is needed between facilities and water supplies and that the same setback should apply to manure application and water supplies.

The rules only require 1,000 feet between manure storage and water supplies, and a smaller setback for manure application sites.

[Environmentalist] Maloney said, “It’s another example of where the rules could have and should have been stronger.”

According to Maloney, the biggest concern was lack of transparency. The rules call for farms and not state regulators to keep manure management records. Citizens will have little access to the records, which should be public.

Maloney notes that information is invaluable for planners and watershed coordinators to have a complete picture of potential pollution concerns in the watershed.

The groups also want public hearings for new or expanding livestock operations to be required, not left to the discretion of state regulators.

The rules include a 33-day public comment period, but there is no requirement for a public hearing. Palin said the department frequently holds public information sessions when there is a high level of public interest in a specific CFO proposal, but “it’s done on a case-by-case basis.”

“Our view is public hearings should be a more routine part of the process rather than an exception the way it is now,” Maloney said.

The Andersons' legal malpractice lawsuit against the remaining defendant, the Indianapolis law firm of Krieg DeVault, is set for trial Dec. 12. Lawyers from the two law firms helped the Andersons set up a tax shelter for their farm ground that the Internal Revenue Service later called illegal.

Tuesday, November 15, 2011

A special subcommittee was created this year to develop bill language to clarify the issue in state statute. Legislators took into consideration “the Castle Doctrine,” a common law principle, the basis of which was codified in Indiana law in 2006, which says that a person is justified in using reasonable force and doesn’t have a duty to retreat if the person reasonably believes that force is necessary to prevent or terminate someone’s unlawful entry or attack on the person’s home. The subcommittee voted to approve a draft bill to clarify the citizen and police officer’s rights and responsibilities in entering a home. A second proposal approved by the subcommittee would more clearly establishes the conditions for unlawful entry of an officer, and when those actions are considered official misconduct.

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

Jesse Puckett appeals the trial court’s sentencing decision after he admitted to violating his probation for Class C felony child molesting. We reverse and remand.

The restated issue we address is whether the trial court abused its discretion in requiring Puckett to serve his entire previously-suspended four-year sentence for violating his probation. * * *

The trial court abused its discretion by considering multiple improper factors before requiring Puckett to serve the entirety of his previously-suspended sentence upon his admission to violating probation. We reverse and remand for a new sentencing determination that is consistent with this opinion.

We are not prepared to say that slipping and falling in a bathtub while taking a shower is something that does not happen “in the ordinary course of things.” Res ipsa loquitur does not apply here. We believe that, if the mere fact of a fall is insufficient to establish liability of a landowner for a customer’s injuries in an ordinary case involving regular floors, it should be doubly true in a case involving a fall in a shower, which necessarily involves a slippery surface. There is no evidence whatsoever that the bathtub as it existed at the time of Hale’s fall was unreasonably unsafe, as compared to bathtubs generally. Additionally, there is no evidence that anyone else ever fell in one of the Shelbyville Hampton Inn’s bathtubs before Hale’s accident, which arguably could have required SS to investigate whether it needed to take measures to increase the safety of the tubs. See Booher, 937 N.E.2d at 395-96 (holding hotel discharged its duty to address complaints of slippery bathtubs where it hired an expert to fix the problem, and there were no accidents or complaints between time of fix and plaintiff’s slip-and-fall in bathtub five months later). There is no designated evidence that either SS or Safe Step breached any duty owed to Hale with respect to the safety of the bathtub in which he slipped and fell, and SS and Safe Step therefore are entitled to judgment as a matter of law.

Ind. Decisions - Court of Appeals orders special prosecutor in David Camm case

Appellant-defendant David R. Camm appeals the trial court’s denial of his petition for the appointment of a special prosecutor pursuant to Indiana Code Section 33-39-1-6(b)(2). More particularly, Camm argues that the trial court erred when it found that the prosecutor’s now cancelled literary contract did not constitute clear and convincing evidence of an actual conflict of interest. Camm further contends that the trial court erred when it required that he show harm in order to prove an actual conflict of interest. Concluding that prosecutor’s literary contract created an irreversible, actual conflict of interest with his duty to the people of the state of Indiana, we find that the trial court erred when it denied Camm’s petition. Thus, we reverse and remand for the appointment of special prosecutor and for further proceedings consistent with this opinion. * * *

The trial court held that the cancellation of the contract weighs against finding an actual conflict of interest, and, likewise, the State argues that the cancellation of the contract precludes this court from finding that an actual conflict of interest exists. Notwithstanding the State’s contention, this is a bell that cannot be unrung. Henderson signed a contract to author and publish a book about the Camm case prior to Camm’s third retrial, and, in doing so, he permanently compromised his ability to advocate on behalf of the people of the State of Indiana in this trial.

Were we to hold otherwise, there would be more chapters to this book. As a result of having signed the literary contract, Henderson has provided Camm with a defense strategy that he would not otherwise have. Camm may now contend that Henderson’s literary contract, albeit cancelled, and his commitment to write a book influenced his decision to prosecute Camm for a third time. Henderson has made himself an issue at trial, and thus cannot continue to serve as prosecutor in this case.

Updating yesterday's ILB entry, this morning's Indianapolis Star features a very long and comprehensive story about this case and a related case in federal case. Jon Murray and Bill McCleery are the reporters. A few quotes:

The question for the U.S. Supreme Court: Did the city violate the U.S. Constitution's equal-protection clause when it treated the two groups of Northern Estates residents differently?

The answer might seem obvious, but a legal expert said the case is tricky because courts often defer to such decisions by local governments. Taxpayer-rights groups are watching the Indianapolis case closely.

"We do have examples where some people get treated differently than other people," such as in tax amnesty programs, said David Orentlicher, a professor at the Indiana University School of Law-Indianapolis. "The question is, if you're going to say this is unacceptable, why is this (instance) unacceptable when the other ones are acceptable?"

He added: "The court is going to have to draw some lines here."

Whatever the justices decide could be worth thousands of dollars to 1,500 Indianapolis homeowners participating in two lawsuits -- the one before the U.S. Supreme Court and one pending in U.S. District Court -- with nearly identical claims. For the city, more than $3.5 million -- in partial refunds to homeowners who paid in full or paid installments early under the old sewer program -- is potentially on the line.

Already, the Northern Estates case that's headed to the Supreme Court has tripped up various courts in Indiana. It's the smaller of the two lawsuits and was brought on behalf of 45 plaintiffs living at 31 properties.

A Marion County judge ruled the city owed the residents $381,000. The Indiana Court of Appeals upheld that.

But in May, the Indiana Supreme Court disagreed. Its 3-2 decision found that the city's distinctions between installment payers and those who had already paid in full were rational. Essentially, the city argued that installment payers were more likely to be under financial hardship than those who paid all at once. * * *

The outcome likely will affect the other case -- which, so far, has held more promise for residents seeking partial refunds.

Last year, a federal judge in Indianapolis ruled the city violated the equal-protection clause. The city likely will end up on the hook for $3.2 million once U.S. District Judge Tanya Walton Pratt, who has since taken over the case, enters a final judgment.

The city plans to appeal that case to the 7th U.S. Circuit Court of Appeals in Chicago, but a Supreme Court ruling may decide the issue for both.

The oral argument in Andrew Conley v. State of Indiana was heard yesterday at Indiana University – South Bend, followed later in the afternoon by oral argument in the case of Jerrme Cartwright v. State of Indiana, held at Notre Dame Law School.

Mary Kate Malone reports in the South Bend Tribune on the Conley case. Some quotes:

Conley pleaded guilty on Sept. 13, 2010. After a five-day hearing, Dearborn-Ohio County Circuit Court Judge James Humphrey sentenced him to life in prison without parole. The life-without-parole sentence was possible under Indiana law after the state proved that the victim was under the age of 12.

Deputy Attorney General Henry Flores Jr., who argued before the Supreme Court on Monday representing the prosecution, stated the sentence was appropriate given Conley’s character and the heinous nature of the offense.

Flores asked the justices to “exercise greater restraint” in considering Conley’s argument for a lesser sentence given the circumstances of the crime.

Justice Frank Sullivan Jr. pressed Flores, saying a case where a juvenile received the second-most severe sentence under Indiana law should perhaps demand just the opposite.

“Doesn’t that cry out for heightened appellate scrutiny?”

Flores went on to detail the crime. He disagreed with Weissmann’s assertion that Conley’s age should have been weighed more heavily by the judge at the time of sentencing. Flores noted Conley was just six months away from turning 18 at the time of the slaying.

“He understood the legal process, had an above- average IQ ... this was not an immature 17-year-old as far as mental capacity,” Flores said.

The justices took the case under submission, and will issue a decision at a later date.

Meanwhile, the U.S. Supreme Court last week agreed to consider two cases involving juveniles being sentenced to life in prison without parole for murder. They will weigh whether the Eighth Amendment prohibits such a sentence on grounds that it is considered cruel and unusual punishment.

Weissmann did not make the same constitutional argument in Conley’s appeal, but she told the justices that in light of the U.S. Supreme Court’s decision to review similar cases, she would file an amended brief raising the issue.

Four of the five justices attended the hearing at IUSB. Justice Robert Rucker was not present.

Here is the report on the Conley argument as reported by Tom Coyne of the AP, headlined "Lawyer says Ind. teen wrongly labeled 'psychopath'" - a quote:

[Defense lawyer Leanna] Weissmann claims Conley was mentally ill when he killed his brother, Conner Conley, while wrestling in 2009 and a more appropriate sentence would have been 55 years in prison. With Indiana's credit for time served, that would allow Conley to be released in as little as 25 years, when he is in his 40s.

Weissmann also said a comparison between Conley and the Showtime character Dexter, a serial killer, improperly pervaded the trial. Conley had told police he admired the character, and his girlfriend testified to that. Weissmann said the comments were taken out of context and Conley didn't mean he wanted to be a killer.

She said he was having trouble explaining his actions to police under repeated questioning and couldn't come up with the words.

"As a teenager, you're going to latch on to pop culture in order to explain your feelings. That's what teenagers do," she said. "This was a show he watched. He didn't say, 'I want to be like Dexter because he kills people.'"

Three mental health experts who examined Conley concluded he was seriously mentally ill, but prosecutors maintain he was faking.

Anna Boarini reports in the Notre Dame Observer on the argument held there yesterday in the Cartwright case.

Ind. Decisions - Transfer list for week ending November 11, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 13, 2011 list.]

Monday, November 14, 2011

Courts - "Fanon Rucker to run for Supreme Court"

Rucker is a Hamilton County Municipal Court judge who announced Monday he'll seek a seat on the Ohio Supreme Court and become what he said would be the second part of the first father-son Supreme Court justice team.

Rucker, 40, of Roselawn, was elected to a six-year term last week as municipal Court judge, after being appointed in 2007 at age 35. That court presides over misdemeanor crimes and smaller civil suits. * * *

Rucker is the product of two lawyers - his mother, Jacqueline Pace Rucker, is a lawyer in Harrisburg, Pa.; his father is Robert Rucker, Jr., an Indiana Supreme Court justice.

Ind. Gov't. - "Voucher savings? Don't count on it"

In this story published Nov. 9th in the Fort Wayne Journal Gazette, Niki Kelly wrote that:

Hoosier students are playing a variation of musical chairs under Indiana’s new voucher program, but this version has financial implications for the state and Indiana schools.

Following up on the story yesterday, Karen Francisco of the FWJG posted this entry in the Learning Curve blog, it begins:

The Journal Gazette's Niki Kelly reported last week of another of those unintended legislative consequences. This time, it's the parents of a parochial school student transferring their child (or children) to a public school for a year to qualify for voucher support the next year.

The evidence is anecdotal, of course, but the fact that the principal of a Fort Wayne Catholic school shared the information suggests it's no secret. Of course, state education officials are no longer collecting information that shows where a particular school's students come from or where they go, so there will be no way to determine next fall how many private and parochial school students sat out a year in public school just to qualify.

For lawmakers who supported the new entitlement program as a cost-savings measure, the transfer news should be troubling. One argument for the voucher program was that it would actually save the state money because the voucher reimbursement to the parochial/private school is less than the per-pupil state tuition support at the public school.

What lawmakers overlooked, however, is the tremendous financial incentive they offered to parents willing to pull their kids out of private or parochial school for a year just to qualify for vouchers. Those are families who always intended to send their children to private or parochial school. The General Assembly just gave them a way to do it at taxpayer expense.

Ind. Courts - "Fire postpones sentencing in murder case"

Jeff Wiehe reports in the Fort Wayne Journal Gazette in a story that begins:

BLUFFTON – A large fire in Bluffton has postponed a sentencing hearing for a man convicted of killing his estranged wife.

Tyler White, 29, was to learn his fate Monday morning in the death of 28-year-old Amy White, who was pregnant at the time of her death.

Halfway though the hearing, the Wells County Courthouse was evacuated because of a fire at a building next door. A pillar of flame 20 feet high could be seen outside the courtroom window on the third floor.

The fire appeared to be coming from above the Hideaway Lounge, which itself was the scene of a homicide a few months ago.

A dozen firefighters remained at the scene shortly before 10 a.m., and smoke was still billowing out of the building.

Adam Liptak's law column this Monday in the NYTimes looks at law professors friend-of-court filings. A sample:

The health care brief was just an example of a larger problem, Professor [Richard H. Fallon Jr.] wrote, one of role confusion between scholarship and advocacy. “Many scholars’ briefs are actually not very scholarly,” he wrote.

In major cases, the Supreme Court receives stacks of friend-of-the-court filings, called amicus briefs. It helps for them to have an angle: The justices may be more likely to read a brief from a group of scholars with specialized expertise than one from, say, a trade group. That, along with an understandable desire by some law professors to help shape the law, may explain the explosion in the filing of such briefs.

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

D.E. appeals his adjudication as a delinquent. He asserts the trial court improperly accepted the plea agreement that was not signed by either of his parents. He also argues the trial court abused its discretion when it placed him in the Department of Correction (DOC) when a less restrictive placement was available. * * *

Because both D.E. and his appointed counsel signed his plea agreement, satisfying Ind. Code § 31-32-5-1, we cannot find the trial court erred by accepting his plea. Further, his placement in a JCF, even though there was a less restrictive option available, was not an abuse of discretion because D.E.’s earlier attempts at rehabilitation through less restrictive means were unsuccessful. Accordingly, we affirm.

I was discussing the Penn State case with my sister and told her about Dave Coleman coming to that inservice meeting years ago.

I remember that he said it was our responsibility to report any child abuse to our superior and that we were bound to NOT stop there.

I remember he told us that if they did nothing that we had the responsibility "to jump over them" and go to the next step and that we needed to keep track of what was done and not just assume it was taken care of.

Is that what you remember?

[This is the response from her friend]

Yes. that's exactly what I remember, but I can't tell you when we were told that. I also know that every student teacher I've had has been told the same by their universities. Over the years, I've called Child Protective Services when I didn't think a counselor or administrator was going to follow through.

[This from Nancy to me]

This was in the early 90s. Dave Coleman is judge of Hendricks County Superior Court , and like many of the judges, was a high school teacher before he went to law school. This was during an in-service day. We probably got to select from various speakers....and Dave was probably talking about legal matters about which teachers needed to be aware.

The person I confirmed this with is another longtime teacher. Her memory and ethics are impeccable. She was a teacher to whom kids often confided, and I am not surprised that she took this charge as seriously as I did.

Over the years I know I have referenced this in-service to other teachers who were teaching with me during that time and I do not remember any of them ever saying they did not know that we needed to do more. Most teachers really do take their responsibility to children seriously; we may not always want to view ourselves as "in loco parentis" anymore, but we know who should have the kids' backs.

We could also have been advised other times and I might just not remember---I am sure this was the first time that anyone made a strong point of our responsibility to follow-up and make sure that something, at least an investigation, had been done.

In re James E. Chovanec is a 3-page, 3-2 order. However, the two dissenting justices and the concurring justice write that the agreed discipline is insufficient. The Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, beginning December 16, 2011. From the order, signed by Chief Justice Shepard:

In Respondent's representation of debtors in bankruptcy, his secretary routinely prepared and signed his name to petitions and other papers filed in the cases, even though the bankruptcy rules require an attorney of record to make certain certifications about the filings and to sign pleadings, motions, and most other documents presented to the court. See Bankruptcy Rule 9011(a) and (b).

When Respondent's secretary mistakenly filed a bankruptcy petition in the Northern District of Indiana rather than in the Southern District, his secretary signed and filed a motion to dismiss. Bankruptcy Judge Grant set the motion for hearing on July 18, 2005. Respondent failed to appear at the hearing and at two subsequent hearings to show cause why he should not be held in contempt. On September 20, 2005, Judge Grant found Respondent in contempt, fined him $1,000, and prohibited him from filing any more bankruptcies in the Northern District until he petitioned for reinstatement with Chief Judge Dees. The following day, Respondent filed ten more bankruptcy cases in the Northern District. Judge Grant issued another show cause order and set it for hearing on October 12, 2005.

On September 23, 2005, Respondent filed a petition for reinstatement with Judge Grant, who transferred it to Judge Dees. Judge Dees granted Respondent limited relief, allowing him to continue with cases for which he had already been retained. Respondent then failed to appear at the October 12, 2005, show cause hearing. Judge Grant again found Respondent in contempt and prohibited him from representing any client in the Northern District until he paid a $500 fine and successfully petitioned for reinstatement. * * *

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

3.3(a): Knowingly making false statements to a tribunal (through his secretary).

3.4(c): Knowingly disobeying an obligation under the rules of a tribunal.

5.3(b): Failure to make reasonable efforts to ensure that the conduct of a nonlawyer employee over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer.

5.3(c): Ordering or ratifying the misconduct of nonlawyer assistants, or failing to take reasonable remedial action with respect to the misconduct of nonlawyer assistants under the lawyer's supervision.

* * *

Dickson and Rucker, JJ., concur.

Sullivan, J., concurs only because this matter was submitted to this Court pursuant to a conditional agreement, noting that he would have voted for more severe discipline had this matter been submitted without an agreement.

Shepard, C.J., and David, J., dissent, believing that the agreed discipline is insufficient for the misconduct admitted.

ILB: Note that although the CJ's signature is on the order, the end of the document shows him in dissent.

Law - "Felons Finding It Easy to Get Gun Rights Reinstated"

Under federal law, people with felony convictions forfeit their right to bear arms. Yet every year, thousands of felons across the country have those rights reinstated, often with little or no review. In several states, they include people convicted of violent crimes, including first-degree murder and manslaughter, an examination by The New York Times has found.

While previously a small number of felons were able to reclaim their gun rights, the process became commonplace in many states in the late 1980s, after Congress started allowing state laws to dictate these reinstatements — part of an overhaul of federal gun laws orchestrated by the National Rifle Association. The restoration movement has gathered force in recent years, as gun rights advocates have sought to capitalize on the 2008 Supreme Court ruling that the Second Amendment protects an individual’s right to bear arms.

This gradual pulling back of what many Americans have unquestioningly assumed was a blanket prohibition has drawn relatively little public notice. Indeed, state law enforcement agencies have scant information, if any, on which felons are getting their gun rights back, let alone how many have gone on to commit new crimes.

While many states continue to make it very difficult for felons to get their gun rights back — and federal felons are out of luck without a presidential pardon — many other jurisdictions are far more lenient, The Times found. In some, restoration is automatic for nonviolent felons as soon as they complete their sentences. In others, the decision is left up to judges, but the standards are generally vague, the process often perfunctory. In some states, even violent felons face a relatively low bar, with no waiting period before they can apply.

Indiana is not mentioned in the story, which does report:

Today, in at least 11 states, including Kansas, Ohio, Minnesota and Rhode Island, restoration of firearms rights is automatic, without any review at all, for many nonviolent felons, usually once they finish their sentences, or after a certain amount of time crime-free. Even violent felons may petition to have their firearms rights restored in states like Ohio, Minnesota and Virginia. Some states, including Georgia and Nebraska, award scores of pardons every year that specifically confer gun privileges.

ILB: From a check of Indiana's statutes, IC 35-47-4-7 deals with restoration of the right to possess a firearm to a person who has been convicted of a crime of domestic violence.

IC 35-47-4-5 concerns unlawful possession of a firearm by a "serious violent felon," a term defined in the section. "A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony."

Ind. Courts - "Indiana teen who strangled brother seeks sentence cut"

The Supreme Court has scheduled an oral argument at 1:00 PM this afternoon to hear a direct appeal in the case of Andrew Conley v. State of Indiana. From the Court summary:

Conley, a teenager, pleaded guilty to murdering his younger brother, and the Ohio Circuit Court sentenced him to life without parole. In this direct appeal, Conley argues the sentence was inappropriate.

In a rare departure, the argument will be heard outside the Court's Statehouse courtroom. Rather, all involved in this southeastern Indiana case will be traveling to Indiana University – South Bend.

Charles Wilson, of the AP bureau here in Indianapolis, covered the trial last fall and today has a long, widely syndicated report on the upcoming argument. Some quotes:

An Indiana teenager who strangled his 10-year-old brother and admired a fictional serial killer should not have been sentenced to life in prison without parole because he was mentally ill, his attorney argued in appealing for a lighter sentence. * * *

The Indiana Supreme Court will hear arguments on [Andrew] Conley's appeal today in South Bend. Conley, now 19, unexpectedly pleaded guilty as his trial was set to begin in September 2010. He was sentenced to life without parole following a five-day hearing before a judge in which his videotaped confession was played.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/14/11):

Monday, November 14th

1:00 PM - Andrew Conley v. State of Indiana (58S00-1011-CR-634) -
Conley, a teenager, pleaded guilty to murdering his younger brother, and the Ohio Circuit Court sentenced him to life without parole. In this direct appeal, Conley argues the sentence was inappropriate.Where: The argument will be conducted at Indiana University – South Bend in the Recital Hall located in Room 158 of Northside Hall, 1700 Mishawaka Ave., South Bend, IN 46634-7111.

3:30 PM - Jerrme Cartwright v. State of Indiana (82S01-1109-CR-564) -
Cartwright was convicted of attempted battery with a deadly weapon and other offenses in the Vanderburgh Circuit Court. A majority of the Court of Appeals panel reversed the conviction and remanded the case for a new trial based on Batson v. Kentucky, 476 U.S. 79 (1986). Cartwright v. State, 950 N.E.2d 807 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Where:
The argument will be conducted at the Patrick F. McCartan Courtroom, 1170 Eck Hall of Law, Notre Dame Law School, Notre Dame, IN 46556.

Wednesday, November 16th

9:00 AM - Roy Lee Ward v. State of Indiana (74S00-0907-PD-320) - Ward’s convictions and death sentence were affirmed on direct appeal in Ward v. State, 903 N.E.2d 946 (Ind. 2009) and on reh’g 908 N.E.2d 595 (Ind. 2009). Subsequently, the Spencer Circuit Court denied post-conviction relief, and Ward brought this appeal. Ward argues that he was deprived of his right to the effective assistance of counsel, that the Indiana death penalty statute is unconstitutional, and that the prosecutor’s argument concerning the conditions of confinement entitles Ward to relief.

9:45 AM - R.L. Turner Corporation v. Town of Brownsburg (32S01-1109-PL-573) - After the Hendricks Superior Court entered judgment for the Town of Brownsburg ("Town"), the court granted the Town's petition for attorney's fees. The Court of Appeals affirmed, concluding the judgment's award of "Costs to be assessed" included an award of attorney's fees for frivolous litigation with the amount to be determined at a later date. R.L. Turner Corp. v. Town of Brownsburg, 949 N.E.2d 372 (Ind. Ct. App. 2011), vacated. The opinion also states that "a petition for attorney's fees may be filed by the prevailing party no later than sixty days after final judgment has been rendered." Id. at 382. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: this was a May 6, 2011 COA opinion involving attorney's fees, including: "Hereafter, post-judgment requests for attorney's fees by a prevailing party in a frivolous lawsuit may be filed no later than sixty-days after final judgment has been rendered."

10:30 AM - Michael Baker v. State of Indiana (89S01-1109-CR-543) - Baker was convicted of burglary following a jury trial in the Wayne Circuit Court. In a not-for-publication Memorandum Decision, the Court of Appeals reversed the burglary conviction on grounds there was insufficient evidence of intent to commit theft inside the church that Baker had entered. Baker v. State, No. 89A01-1010-CR-536, slip op. (Ind. Ct. App. Jun. 17, 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

Next week's oral arguments before the Supreme Court (week of 11/21/11):

Monday, November 21st

9:00 AM - Michael Sharp v. State of Indiana (12S02-1109-CR-544) -
Sharp was convicted of two counts of child molesting. The Clinton Superior Court sentenced him to an aggregate term of forty years and found him to be a credit restricted felon who will receive one day of credit time for every six days served. The Court of Appeals affirmed the conviction and sentence, indicating in part that it would not take into account a person’s credit restricted status when reviewing a sentence under Appellate Rule 7(B). Sharp v. State, 951 N.E.2d 282 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

9:45 AM - Jerrell White v. State of Indiana (15S01-1109-CR-545) -
After being convicted of theft in the Dearborn Superior Court, White was found to be an habitual offender based in part on a prior felony that he had committed when he was fifteen years old. The Court of Appeals reversed the habitual offender determination on grounds the State offered no evidence to show that the White had been charged and convicted of the prior felony as an adult. White v. State, 950 N.E.2d 1276 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

Sunday, November 13, 2011

Courts - "Despite title, U.S. Supreme Court not always last word"

A very interesting report today by Mark Sherman of the AP. Here it is in the Stamford Advocate and at USA Today. A few quotes from the long story:

WASHINGTON (AP) — Nothing about the Supreme Court — not its magnificent building atop Capitol Hill nor its very title — suggests that its word is anything other than final. Yet federal appellate judges and even state court judges sometimes find ways to insist on an outcome the Supreme Court has rejected. * * *

The appeals court in Washington where four Supreme Court justices trained, the Oregon Supreme Court, and occasionally even the San Francisco-based federal appeals court given its come-uppance last week, have in recent years won battles with the justices. The lower court judges have managed to limit the rights of terrorism suspects detained at Guantanamo, uphold awards of large punitive damages against companies and rule in favor of criminal defendants, despite the Supreme Court's disapproval.

The efforts bring complaints from lawyers on the losing end of these cases and from some scholars that the judges are "thumbing their noses" at the Supreme Court, although those complaints usually are expressed in the more polite legalese of the courtroom.

That's why an appeal asking the high court to throw out a punitive damages award calls an Oregon Supreme Court decision upholding the award "yet another attempt by that court to thwart federal due process protections."

Ind. Law - Still more on "Penn State scandal spotlights debate over who must report abuse"

Updating this ILB entry from Nov. 12th, Abby Tonsing of the Bloomington Herald-Times ($$$) has a story today headed "Legal requirements for reporting abuse vary by state." A few quotes from the long story:

Almost every state mandates that people in certain designated jobs file reports if they suspect child abuse. In Pennsylvania’s case, this includes health-care workers, school employees, child-welfare workers, members of the clergy and law enforcement.

At least 18 states have broader language in their laws saying that every person, regardless of job, who suspects child abuse has a legal duty to report to the authorities, the Associated Press reports.

Indiana is one of those states.

Any individual “who has reason to believe that a child is a victim of child abuse or neglect shall make a report,” the state statute reads.

If the context of the abuse is in an institutional setting, such as a school, those individuals must report the abuse or neglect to their supervisors, who then are required to immediately make a report to police or CPS, Monroe County deputy prosecutor Bob Miller explained.

Still, the person who makes an initial report to supervisors, under Indiana law, continues to have a duty to report abuse and neglect to police or CPS if they know their superiors have not, Miller said.

In Penn State’s case, McQueary went to Paterno with the sexual assault allegation, and McQueary knew that after several years no real action had been taken by authorities. “He would be in just as much hot water in this case, under Indiana law,” Miller said.

Reports can be made anonymously.

“There is immunity for the person making the report, so they ought to err on the side of caution and make the report, even if they’re not absolutely sure,” Miller said.

Indiana state law doesn’t distinguish between those who might witness child abuse firsthand, and those who have reason to believe abuse is occurring, Bloomington police Capt. Joe Qualters explained in an email.

“To me, that means physical evidence (such as bruising), a verbal statement made to you or other information about an abuse situation that you become aware of. ‘Reason to believe’ is clearly different than a standard of something like ‘absolutely believe,’” Qualters said.

The Indiana child abuse reporting law puts the onus on the adult, rather than the young victim, to make the report.

“Since it involves children, these things are much less likely to be reported by the victim,” Miller said. Children don’t have the power, and some may not have the mental capability, to know how to make such reports.

Ind. Gov't. - "As a result of a flap over one district's decision to do away with free busing, the consequences of state officials' efforts to force school corporations into new spending habits are on full display"

That is the first sentence of this story today in the Evansville Courier & Press, reported by Eric Bradner. The long story continues:

This year the cash-strapped Franklin Township Community School Corporation, on the southeast side of Indianapolis, has hired a private contractor to run the school's buses, for a fee of more than $400 per year that parents of children who use the buses must pay.

Indiana Attorney General Greg Zoeller, a Republican, weighed in last week to say that he considers it to be in violation of Indiana's constitution. He said he intends to ask the State Board of Accounts to review Franklin's busing deal.

The township is the only one in Indiana so far to try such a system. It's worth a close look, though, because so many others – Mount Vernon is a prime example – faced similar pressures in recent years.

For more, see this ILB entry from Nov. 10 headed "AG Zoeller concludes it is unconstitutional for a school corporation to require fees for school bus transportation even if the school system outsources bus service to another entity."

Courts - Two modern SCOTUS justices with Indiana connections

Dan Carden in the NWI Times today, in a story headed "Region ties fostered friendship between U.S. Supreme Court justices," writes:

INDIANAPOLIS | The shared experiences of living, working and vacationing in and around Northwest Indiana were the connection that led to friendship and collegiality between two U.S. Supreme Court justices, according to a new book.

In "Five Chiefs," published last month by Little, Brown and Co., now-retired Justice John Paul Stevens [a Chicagoan] recalls the five chief justices he worked with at the nation's high court.

One chapter is on the current chief justice, John Roberts, who "moved to the LaPorte County town of Long Beach as a fourth-grader and attended high school at La Lumiere School in LaPorte."
In another story today in the Times, Stan Maddux writes about friends and neighbors' memories of Roberts growing up Long Beach, quoting, among others, Michael Bergerson, "a longtime Michigan City attorney."

Another in a long series of Indianapolis Star stories on the controversy surrounding Duke's Edwardsport plant and the company's relationship with state government. John Russell reports in today's lengthy story:

As costs were spiraling last year at Duke Energy Corp.'s new power plant in Edwardsport, the company's chairman met privately with Gov. Mitch Daniels and asked him to help keep the troubled project on track, according to documents obtained by The Indianapolis Star.

James Rogers, Duke's chairman and chief executive, suggested the governor get together with top executives at General Electric and Bechtel, the project's two main contractors, to express concerns over "ongoing cost pressures" at Edwardsport.

Daniels never met with the contractors, for reasons that remain unclear. But some critics say even the suggestion of such a meeting was inappropriate. That's because the project was still winding its way through the state regulatory process, and consumer advocates argue that state officials should have kept Duke executives at an arm's length.

Law - "Illinois law opens access to biological parents"

Mark Wilson of the Evansville Courier & Press has this story today. Some quotes from the long story:

EVANSVILLE — An change in Illinois law is expected to throw open the doors this week for adoptees to obtain the names of their birth parents in that state.

When adoptions are final it is customary to issue a new birth certificate to the adoptive parents and seal the original birth certificate, which is kept confidential by each state's vital records registrar.

"Adopted persons will now be able to apply for an original birth certificate," said Melaney Arnold, spokeswoman for the Illinois Department of Public Health.

The law places Illinois at odds with more restrictive laws in its neighboring states, including Indiana. * * *

[T]he law makes Illinois the largest state in the country to allow adoptees to obtain original birth certificates. Only a handful of states, including Alabama, Alaska, Maine and Oregon allow adult adoptees unconditional access to it. A crazy-quilt of other policies exists in other states that involves court orders, mutual consent, adoption registries, confidential intermediaries and even counseling sessions.

New Jersey Gov. Chris Christie last June conditionally vetoed a law allowing original birth certificate release, saying he preferred a more cautious approach of confidential intermediaries and release only if the biological parents couldn't be found.

The lengthy story compares and contasts the Indiana and Illinois laws.

Saturday, November 12, 2011

Law - "Judges with Temperaments"

For decades, the judges on television courtroom dramas and police procedurals were adjudicating enigmas. From "Perry Mason" to the capacious "Law & Order" franchise, they did a bit of overruling here, a little sustaining there, demanded order as needed and, at the climactic moment, called for the verdict. What did these blank-faced, black-robed benchwarmers think? About anything?

That is no longer the case, the article continues, describing a number of judges with personalities on current TV. For instance:

Judge Patrice Lessner (Ana Gasteyer), who insists that lawyers preface every statement with "In my opinion" to make it plain that such statements are in no way to be construed as facts.

Robert and Michelle King, the husband-and-wife creators of "The Good Wife," had long viewed TV judges as untapped sources of drama, conflict and surprise, pointing, as a model, to 1959's "Anatomy of a Murder," the big-screen adaptation of a novel by a Michigan state supreme-court justice, John Voelker. "There was a sense of the judge [played by Joseph McCarthy's nemesis Joseph Welch] having a personality, and having likes, dislikes and interests," Mr. King said.

ILB: I thought Robert Traver wrote "Anatomy of a Murder," that is what it says on the cover of my copy. However, a check of Wikipedia shows the book was:

* * * written by Michigan Supreme Court Justice John D. Voelker under the pen name Robert Traver. Voelker based the novel on a 1952 murder case in which he was the defense attorney.

Ind. Law - More on "Penn State scandal spotlights debate over who must report abuse"

Updating this ILB entry from Friday, WRTV News 6 had a story last evening by Joanna Massee titled "Ind. Law Questioned In Wake Of Penn State Scandal: Experts Question Effectiveness Of Mandatory Abuse Reporting Law." Some quotes:

State law makes it a Class B misdemeanor to fail to report child abuse and neglect, but some lawyers and child abuse prevention professionals claim prosecutors have a difficult time holding people accountable * * *

"It's not effective enough to protect our children," said child abuse prevention advocate Sharon Pierce, CEO of The Villages. "My sense is there are often times folks who, for one reason or another, have rationalized that somebody else will make the report, or child abuse doesn't happen here. We can't assume that."

Indiana University Law Professor Joel Schumm said failure to report allegations are difficult to prove and challenging for law enforcement to learn about.

"In some of these cases, there's a gray area, because the statute talks about if you have reason to believe a child's being abused," Schumm said. "Usually, people are not going to walk in on a child being molested or a child being physically abused."

Schumm said it is more common for parents or guardians who fail to report abuse to be charged with neglect of a dependent, a felony.

Law - Municipal bankruptcy: How's that working out for you?

This long Nov. 10, 2011 NY Times report by Campbll Robertson, Mary Williams Walsh and Michael Cooper is headlined "Bankruptcy Rarely Offers Easy Answer for Counties." Here is a sample:

Municipal bankruptcies remain extremely rare, and each of these cases can be viewed as unique, a one-off: Jefferson County was undone by a major sewer project marred by corruption, Harrisburg by borrowing more than it could repay for a disastrous incinerator project, Central Falls by pension problems, and Hamtramck by the woes of the auto industry. Viewed another way, though, they show how the downturn has left the nation’s most distressed cities with few options for papering over huge problems, and left some desperate elected officials placing their hopes in bankruptcy judges.

Their desire for simple solutions may be in vain, though: for constitutional reasons, the part of the federal bankruptcy code that municipalities use, Chapter 9, sharply limits the power of bankruptcy judges to intervene in local governance.

“Chapter 9 really puts the judge more in the position of being a referee than somebody who can really run the county,” said Paul S. Maco, a partner with the firm of Vinson & Elkins who led the Office of Municipal Securities at the Securities and Exchange Commission during the bankruptcy of Orange County, Calif. — the nation’s largest municipal bankruptcy until this week. “Chapter 9 doesn’t take away the difficult political decision-making needed to address a financial credit problem.”

Law - "Penn State Officials, Including Paterno, Could Face Civil Lawsuits"

Law - "Punished, Debarred--But Still Members of the Bar"

Some quotes from a long article dated Nov. 14th, by Sue Reisinger in the national publication Corporate Counsel:

Imagine that you are a general counsel who’s been convicted of a criminal misdemeanor related to fraud, or that you were fired for a serious ethics violation, or that a federal agency has ordered you not to practice before it nor serve as a corporate officer for the next five years because of misconduct. Could discipline by a state bar committee be far behind?

Well, yes, it could be so far behind that it’s not even remotely likely to happen.

Corpcounsel.com this week examined three high profile cases of general counsel who broke the rules and lost their jobs. But not one of the three lost the license to practice law, or was even publicly reprimanded by a state bar. * * *

[The second example is] Scott Storms [who] was chief legal officer of the Indiana Utility Regulatory Commission in 2010 when he made several rulings and recommendations that benefited Duke Energy Indiana.

Unfortunately, at the same time he was applying for, and accepting, a job as assistant general counsel with Duke. When consumers found out about the conflict of interest and became outraged, Duke fired him. The Indiana State Ethics Commission in May ruled that Storms was guilty of three ethics violations.

Yet the state bar of Indiana has no record of any public disciplinary action against Storms. His attorney, Thomas Farlow of Frost Brown Todd in Indianapolis, says Storms is currently unemployed as he appeals the ethics ruling in county superior court.

Ind. Courts - Still more on "When did rape stop being rape?"

Updating yesterday's ILB entry, which quoted a South Bend Tribune story headed "South Bend schools finalist left last job in controversy over not reporting student rape: All three superintendent finalists will interview here next week" ...

That story, by Kim Kilbride, was datelined 7:19 p.m. EST, November 10, 2011.

At 2:27 p.m. EST, November 11, 2011 the same reporter posted this new story, headed "South Bend schools chief finalist withdraws candidacy: King left Muncie amid controversy over failure to report girl's rape." From the story:

SOUTH BEND — South Bend Community School Corp.’s board announced today that Eric King, one of three superintendent finalists, has withdrawn his application for personal reasons.

Roger Parent, school board president, said in a news release, "Citizens and reporters have provided important and valuable information about superintendent candidate finalists. We appreciate their hard work and we thank them for it."

The Tribune reported on Thursday that King left Muncie schools amid controversy this summer over failure of the school district to notify police that a student reported being raped in a high school bathroom. * * *

Christopher Smith, the former principal of Muncie Central High School, is facing criminal charges for failure to immediately report the incident, is scheduled to go on trial Nov. 22.

[Then-Muncie Community Schools Supt.] King, however, did not and will not face criminal charges relating to the incident, a Delaware County deputy prosecutor said Thursday. * * *

Friday, November 11, 2011

Law - "Penn State scandal spotlights debate over who must report abuse"

The scandal engulfing Penn State University has highlighted the murky legal area of "mandated reporters," people who are bound by law to alert authorities to suspected child abuse.

Illinois law features a long list of people who must notify the Department of Children and Family Services if they suspect that a child has been abused or neglected, including doctors, coroners, social workers, police officers, foster parents and members of the clergy.

The law also specifies "school personnel" as mandated reporters, and DCFS spokesman Jimmie Whitelow said Thursday that the department interprets that to include employees of colleges and universities. * * *

[But the] muddled understanding of the law's application on Illinois college campuses mirrors the situation in Pennsylvania, where it's still unclear whether former head football coach Joe Paterno and other Penn State officials were legally obliged to report allegations of sexual abuse.

ILB: What about Indiana?

An entire article of the Indiana Code, IC 31-33, deals with reporting and investigation of child abuse and neglect. And IC 31-33-5 is a chapter specifically relating to the duty to report child abuse and neglect. IC 31-33-5-1 requires:

In addition to any other duty to report arising under this article, an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.

This 2010 survey of state reporting requirements lists Indiana as one of "16 States and Puerto Rico [that] specify certain professionals who must report but also require all persons to report suspected abuse or neglect, regardless of profession."

Ind. Gov't. - "State Efforts in Sentencing and Corrections Reform"

Thanks to an entry in Sentencing Law Blog, here is a 26-page, Oct. 27, 2011 Issue Brief from the National Governors Association Center for Best Practices, titled "State Efforts in Sentencing and Corrections Reform."

Ind. Courts - More on "When did rape stop being rape?"

Recall this Aug. 7, 2011 ILB entry about the Muncie Central incident where "School officials did not call police in after the victim reported having been raped in a school restroom, but instead had her sit in the principal's office for two and a half hours," and the earlier Nov. 19, 2010 story (quoted in the second half of this ILB entry) that began: "More than a week after a student reported she was raped at Central High School, school administrators are coming forward to speak with police detectives"?

Today Kim Kilbride of the South Bend Tribune has a story that is headlined "South Bend schools finalist left last job in controversy over not reporting student rape: All three superintendent finalists will interview here next week." The reference is to "Eric King, former superintendent of Muncie Community Schools." From today's lengthy story:

[King] said he resigned from Muncie schools in June for personal reasons and has been enjoying some time off since.

According to an Associated Press story from Dec. 15, 2010, King left that district amidst controversy.

In November 2010, the story says, Central High School administrators failed to report to police a female student’s allegations that a male student raped her in a bathroom at the school.

The Associated Press reported last year that King said the rape report was "vague" and administrators wanted to investigate on their own before filing a police report.

The girl’s mother has filed a civil lawsuit against Muncie Community Schools, King, former Muncie Central Principal Christopher Smith and the mother of the accused student, who since has pleaded guilty and been sentenced to four years in prison.

A Delaware County deputy prosecutor, Eric Hoffman, told WSBT-TV that King did not and will not face criminal charges in the rape-reporting incident.

Courts - More on: Missouri trial court throws out law based on one-subject requirement

Updating this ILB entry from April 1, 2011 (that includes a link to the 1994 opinion cited, Hammerschmidt v. Boone), Jason Hancock reported Nov. 10th in St. Louis Today in a story headed "Missouri Supreme Court hears challenge to 2010 ethics reform law - some quotes:

JEFFERSON CITY • Whether or not lawmakers violated the constitution when they passed an ethics reform bill will be decided by the Missouri Supreme Court, which heard arguments on both sides of the issue Thursday morning.

The law began as a bill to allow statewide elected officials to use the Office of Administration to bid out contracts for purchasing, printing and other functions. By the time it passed on the final day of the 2010 legislative session, it included provisions creating the crime of obstructing an ethics investigation and limiting one political committee giving money to another one, among others.

It also included a requirement that that each legislator be provided a key to the dome of the state Capitol.

In March, Cole County Circuit Judge Dan Green ruled the law violated the constitution because it addressed more than one subject. He struck down all provisions except the one dealing with purchasing, which he determined was the bill's original purpose.

Thursday, Ronald Holliger of the Missouri Attorney General's office argued that the purpose of the bill was ethics, because changing the purchasing procedures was designed to avoid potential conflicts of interest. The law provides a vehicle for the purchase of services to be done by competitive bidding and without the political involvement of elected officials.

The final title of the bill - a law "relating to ethics" - reflects this, he said.

Therefore the ethics provisions were within the original purpose of the law and its final title and should be allowed to stand, Holliger said.

Attorney Chuck Hatfield -- who brought the suit on behalf of Legends Bank and its president, John Klebba -- argued that the entire law should be voided because it clearly violates the constitution by including more than one subject. Even if the bill's subject were determined to be ethics, keys to the Capitol building clearly go beyond that, he said.

In striking down specific provisions in the law, Judge Green cited the 1994 case of Hammerschmidt v. Boone County. In that case, the Missouri Supreme Court ruled that when a bill contains more than one subject, the provisions that are considered the bill's original purpose could be allowed to stand even if the rest of the bill is voided.

Ind. Law - Indiana Tech names dean for its upcoming law school

Indiana Tech introduced Peter C. Alexander, currently a professor at Southern Illinois University School of Law, as founding dean of the Indiana Tech School of Law during a news conference Friday morning. From the news release:

Fort Wayne, Ind.—Indiana Tech has chosen Peter C. Alexander as the founding dean of the university’s law school, which is slated to open in fall 2013 in Fort Wayne.

Alexander will officially begin work on January 9, 2012. He is currently a professor at the Southern Illinois University School of Law in Carbondale, Ill., where he served as dean from 2003 until 2009.

“Peter Alexander shares our vision for law school education in the 21st century and has the qualifications and experience to help us achieve our goals,” said Dr. Arthur E. Snyder, Indiana Tech president. “I look forward to working with him as we continue our curriculum development and begin recruiting students for our first class.”

Alexander has more than 25 years of experience in teaching and practicing law.

Lawyer Jonathan Little filed the lawsuit on behalf of the girl against United States Swimming and Indiana Swimming, the national organization that governs competitive swimming and its affiliate. The lawsuit also names Lawrence Township Schools, Wheat, former Lawrence coach John Diercks and McCutcheon High School swim coach Amanda Juntenen Cox.

Generally, the lawsuit alleges that people in positions of authority were made aware of allegations against Wheat but never went to law enforcement as required by law. * * *

It's Little's sixth lawsuit against USA Swimming, an organization based in Colorado Springs, Colo., that faces an increasing number of lawsuits alleging a pattern of sexual misconduct among swimming coaches nationally. * * *

"We have a rotten, sick culture in USA Swimming," Little said at a news conference Thursday. "Just like in the Penn State case, those in authority ignored sexual abuse claims and failed to report sexual abuse complaints to law enforcement.

"USA Swimming and Indiana Swimming have failed to protect (my client) and possibly a number of other swimmers across the country by fostering a culture that places the protection of pedophile coaches ahead of protecting athletes." * * *

Wheat was sentenced in September 2010 to eight years in prison and two years in community corrections after he pleaded guilty to two counts of sexual misconduct with a minor and one count of child solicitation. The victim was an eighth-grade swimmer on the Lawrence Swim Team, where Wheat was head coach and executive director. He also was an assistant coach for Lawrence North.* * *

Little has five active lawsuits on behalf of swimmers against USA Swimming. Another case, he said, has been resolved -- but he wouldn't disclose details, citing a confidentiality agreement.

In one of the five active cases, he represents one of the victims of Brian Hindson, former Kokomo and Westfield coach. Hindson pleaded guilty in 2008 to 16 counts of child pornography after secretly recording girls younger than 18 undressing.

[Updated on Nov. 12, 2011] Chris Sikich of the Indianapolis Star has this new story, headlined "Swim coaches proclaim their innocence: They deny lawsuit's claims that they failed to report possible sexual misconduct."Access it here.

Thursday, November 10, 2011

Ind. Courts - "Lawmakers define protections from police entry"

The Gary Post-Tribune has a brief story this afternoon by Tom LoBianco of the AP that begins:

Richard Barnes may have started a constitutional furor in 2007 when he shoved a police officer against the wall of his house. But he would not have benefitted from a new set of rules Indiana lawmakers are drafting in response to the incident.

And chair Senator Brent Steele has sent out a press release headed "Barnes v. State Subcommittee Passes Final Report, Still Open to Suggestions in Upcoming Session." A quote:

“Our draft legislation allows statutory defense for homeowners in specific situations of unlawful home entry by law enforcement,” Steele (R-Bedford) said. “It was this panel’s goal to make a suggestion that would protect both homeowners and police officers, reducing the potential for violence and respecting the private property of citizens.”

As currently written, the committee’s draft legislation permits a homeowner to use reasonable force in resisting a police officer’s unlawful entry into a dwelling if that homeowner does not have actual knowledge that the officer is, in fact, an officer or if the officer is not engaged in official duty. The legislation notes that, even then, violent force should be used to prevent the unlawful entry only if there is no other adequate alternative.

However, Steele said the draft legislation does not allow homeowners to resist if a police officer enters in cases of:

Suspected domestic violence or reasonable belief that someone inside the house is at risk of physical harm;

Invitation from at least one resident, unless one or more other adult residents object;

Hot pursuit;

Pursuit of a criminal committing or escaping after the commission of a crime; and

Stage Collapse - "Is State Fair investigation fair?"

That is the heading of this WISH TV story from last evening, by Deanna Dewberry. Some quotes:

INDIANAPOLIS (WISH) - The State Fair stage collapse has brought to light an intriguing question: Can Hoosiers trust that the process is fair when the state is acting as both defendant and investigator?

The stage rigging collapse in August that killed seven people set the wheels in motion for dozens of divisions of state government. And the lawyer for each division is Indiana Attorney General Greg Zoeller.

For example, Zoeller's deputies are lawyers for the State Fair Commission, a defendant in numerous lawsuits. Zoeller's deputies also serve as lawyers for IOSHA, the state agency investigating the collapse.

"Certainly it’s a conflict for the AG to prosecute or investigate this on the one hand, and then on the other hand defend itself," said attorney Kenneth J. Allen, representing a number of state fair victims.

But Cynthia Baker, an IU Law School professor who specializes in state government says the duty of a public lawyer sometimes involves representing competing interests. * * *

But Baker cautioned that when deputy attorneys general represent clients with conflicting interests, "they need to erect the informational equivalent of a Chinese wall between and among those lawyers."

Bryan Corbin, a spokesman for Zoeller, assured that "Chinese wall" disallows the deputy attorney general from sharing information with colleagues working on behalf of the State Fair Commission. He further pointed out that the state has agreed to pay fair victims $5 million - the maximum under the law - and IOSHA's findings will have no bearing on that.

Ind. Decisions - Opinions in 3 Indiana cases today from 7th Circuit

A jury convicted Dale Russell of
producing sexually explicit photographs of his minor
daughters which later crossed international boundaries,
in violation of 18 U.S.C. § 2251(a), and the district court ordered him to serve a prison term of thirty-eight years.
Russell appeals his convictions, contending that the
district court erred in (1) allowing one of his daughters
to testify that he had touched her inappropriately one
to two years before he took the photographs charged
in this case; (2) excluding from evidence a number of
photography books from his collection containing photographs
of nude families and children, as well as the
proffered testimony of an expert concerning the practice
of nudism, and (3) instructing the jury that evidence
of a defendant’s flight from prosecution could be considered
as evidence of his consciousness of guilt. Russell
also contends that his sentence was unreasonable. We
affirm Russell’s convictions and sentence.

In Overly v. Key Bank (SD Ind., Barker), a 20-page opinion, Judge Conley (United States District
Court for the Western District of Wisconsin, sitting by designation) writes:

Krysten Overly sued her employer
Key Investment Services LLC, its parent company
and several of its affiliates (collectively “KeyBank”) in
Indiana state court for allegedly discriminating based on
her gender and retaliating against her because of her
complaints of gender discrimination in violation of
Title VII of the Civil Rights Act of 1964. KeyBank removed
the case to federal court and later filed a motion
for summary judgment on both the discrimination and
retaliation claims. The district court granted that
motion and entered final judgment in favor of KeyBank.

On appeal, Overly argues the district court erred in
entering summary judgment because genuine issues of
material fact remained regarding whether she was discriminated
and retaliated against, subjected to a hostile
work environment and constructively discharged because
of her gender and for complaining about gender
discrimination. Finding no disputed issues of genuine
fact material to Overly’s claims of gender discrimination
or retaliation, and agreeing with the district court’s
reasons for granting KeyBank’s summary judgment
motion, that judgment will be affirmed.

Ind. Decisions - Court of Appeals issues 3 today (and 22 NFP)

This lawsuit involves the termination of Cook's employment as Atlanta's town marshal, not his demotion or reduction in rank. Based upon the record and the express language of the statutory provisions above, we conclude that the Atlanta town council was not free to terminate Cook's employment as its town marshal without conducting the removal and appeals procedure prescribed by Ind. Code § 36-8 and adhering to the requirements of subsections (b) through (l) of Ind. Code § 36-8-3-4. Accordingly, the trial court erred in denying Cook's petition, and we reverse and remand for further proceedings consistent with this opinion.

M.E. appeals from the order of regular commitment entered by the Marion Superior Court and argues that the trial court committed fundamental error by failing to issue an order scheduling a hearing within three days of its receipt of the petition for involuntary commitment and by failing to make a timely determination that M.E.‟s prehearing detention was supported by probable cause. Concluding that M.E. has not established that the trial court committed fundamental error, we affirm.

The State of Indiana and the Metropolitan Drug Task Force (collectively “the State”) appeal the trial court’s order granting Joseph Ferguson’s oral motion to sanction the State for the untimely filing of its witness and exhibit list by excluding the State’s witnesses and exhibits. The State presents a single issue for review, namely, whether the trial court abused its discretion when it excluded the State’s witnesses and exhibits. We affirm.

And here is the the earlier referenced opinion, from July 12, 2010, answering "no" to the State Board of Accounts question of whether a school corporation could assess a fee for a student's transportation to receive a public education.

Today's opinion concludes:

The transportation arrangement that generated your opinion requests does not comply with state law as the school is attempting to do indirectly what it is prohibited from doing directly. While nothing prohibits an ESC from providing transportation for a member school corporation, the ESC is not permitted to charge transportation fees that the school corporation itself cannot charge. Thus an ESC may not contract with parents of students and charge them fees for transportation services.

The same conclusion would apply if the school corporation entered into a third-party agreement with a private provider: It would still be electing to provide an essential program or service to its constituents and could not assess a fee for such programs or services, absent specific statutory authority to do so. It would be attempting to do indirectly what it is prohibited from doing directly.

Parents can only enter into a Parents' Supplemental Transportation Contract with a third party under Ind. Code § 20-27-6-3 when the school corporation has elected not to provide transportation. That is not the case in this situation that prompted your opinion requests. The school corporation is still electing to provide bus transportation to its students, albeit through its ESC, which is an extension of the school corporation itself. As such, it would still be prohibited from assessing a bus rider fee for transportation to and from its schools in order for its students to receive the public education contemplated by Art. 8, § 1. ESCs, as agents of school corporations, are prohibited by Indiana's Constitution and statutes from charging fees for student transportation.

A high profile working group has been formed to review the laws and rules involving one of the most critical records in Indiana’s judicial system—the judgment docket. The judgment docket serves as notice to all interested parties that a judgment exists and is a lien on the real property of the defendant.

What are the problems?

The judgment docket contains not only information about court judgments, it also contains entries for “judgments” created by statute such as:

failure of railroad company to repair or improve that portion of the street occupied by its track (see I.C. 8-6-12-2);

removal of signs that are public nuisance (see I.C. 8-23-20-26); tax warrants (see I.C. 6-8.1-8-2); and

liens for unsafe building repairs (see I.C. 36-7-9-13).

The judgment docket is a tool meant to be usable by the public to locate judgments; however, the public has no way of knowing where a particular judgment is recorded. A recent survey of the Indiana Code found statutory authority for at least 198 judgment dockets. There is no cross referencing of these judgment dockets.

There is no consistency from county to county or even court to court within the same county about how judgment dockets are kept. Some counties still keep actual judgment docket books; some keep this record electronically; some record unpaid court costs and fines, and some do not.

Party Identification issues exist. There may be many James Smiths in a county. How can we ensure the judgment docket properly identifies the specific James Smith related to the judgment?

Confidentiality issues exist. Some juvenile cases contain orders for restitution. According to statute, restitution orders should be recorded in the judgment docket; however, juvenile cases are confidential. How should this be handled?

Ind. Decisions - One NFP today from Tax Court

Mr. Fuller claims that his property taxes increased [from those of the property's previous owners] because he did not receive the homestead credit, the homestead standard deduction, or the mortgage deduction for the 2007-pay-2008 period. According to Mr. Fuller, after he purchased his home, the Cass County Auditor removed those credits and deductions. When Mr. Fuller attempted to have them reinstated, an individual from the Auditor's Office told him it was impossible because the application deadlines for the credits and deductions had expired before he even purchased his home. * * *

On appeal, Mr. Fuller reiterates his claim that during the 2007-pay-2008 period he was unfairly required to pay higher taxes because he purchased his home after the statutorily imposed deadlines for the homestead credit, the homestead standard deduction, and the mortgage deduction. In addition, Mr. Fuller claims that because he has had to spend his own time and money trying to rectify this “unfairness,” he is entitled to the same compensation an attorney would receive had he engaged an attorney to represent him. The Court will address each of these claims in turn. * * *

Mr. Fuller's situation reflects some of the challenges Indiana's citizens have had in understanding the changes to and complexities of our property tax system. While the Court is sympathetic to Mr. Fuller's plight, it is bound to apply the law as written. See Scopelite v. Ind. Dep't of Local Gov't Fin., 939 N.E.2d 1138, 1144 (Ind. Tax Ct. 2010) (stating that the Court will not read provisions into statutes where they do not exist) (citation omitted). Therefore, the Court must affirm the Indiana Board's final determination that Mr. Fuller did not establish that he was entitled to the homestead credit, the homestead standard deduction, or the mortgage deduction for the 2007-pay-2008 period.

Mr. Fuller also explains that he has spent a great deal of time, effort, and money in representing himself in this matter; thus, as an attorney would receive compensation for his or her labor in representing a client, he too is entitled to fees. The Court disagrees. * * *

Mr. Fuller has not identified a statutory basis to support his request for fees and costs for providing his own representation. Nor has he identified the existence of an agreement where the County and State officials promised Mr. Fuller that they would pay him for his time and expenses. Therefore, the Court denies Mr. Fuller's claim for fees and costs.

Ind. Decisions - 7th Circuit gives attorney 21 days to show "why he should not be censured, suspended, or disbarred on account of his apparent inability to practice competently and diligently in the federal courts"

A violation of Circuit Rule 30 is sanctionable. [cites omitted] Sanctions such as orders to pay the other
side’s attorneys’ fees may redress injuries done to putupon
adversaries, but they do not redress injuries a
lawyer may have done to his own client. We have no
idea whether Sambrano had a good claim against the
Navy—but we do know that, if she had, Joaquin
massacred it.

His conduct in this case implies that Joaquin is not
competent to protect the interests of litigants in the
federal courts. In other recent cases we have ordered
lawyers whose ineptitude injured (or may have injured)
their own clients to show cause why they should not be
suspended from practice or disbarred. [cites omitted] That step is appropriate here too. Judges are
better able than clients to separate competent from bungling
attorneys, and we have a duty to ensure the maintenance of professional standards by members of our bar.
We therefore give Joaquin 21 days to show cause why
he should not be subject to monetary sanctions for filing
a frivolous appeal and violating Circuit Rule 30, and
why he should not be censured, suspended, or disbarred
on account of his apparent inability to practice competently
and diligently in the federal courts. See Fed. R.
App. P. 38, 46.

The judgment is affirmed. An order to show cause
is issued.

For an extended discussion of the opinion, see this entry by Pat Murphy in Lawyer's USA's blog, Benchmarks.

SOUTH BEND - Indiana Attorney General Greg Zoeller will not appeal a local judge’s decision to release a convicted child molester from prison, according to court documents.

The decision, made last month, makes it unlikely that 45-year-old Brian Neirynck will be ever be taken back into custody in the case. * * *

On June 17, seven days after Neirynck’s release, the attorney general filed a notice he would appeal Frese’s decision.

But last month, Zoeller, with the agreement of St. Joseph County Prosecutor Mike Dvorak, filed a motion to dismiss the appeal, and the Court of Appeals granted the dismissal Oct. 24, records show.

Both offices declined to comment on reasons for the dismissal.

The St. Joseph County prosecutor’s office cannot re-file the charges against Neirynck because of double jeopardy laws, which protect defendants from being prosecuted twice for the same crime, Dvorak said.

In a July interview, Dvorak said he was confident an appeal brought by the attorney general would prevail. Dvorak said he was disappointed with Frese’s decision but respected his reasoning. He also said he believed Neirynck’s trial was fair.

Prosecutors work to put offenders in prison, and the attorney general's office works to keep them in prison. That's the shorthand version of the prosecutor's role in seeking justice in trial courts and the attorney general's role in seeking justice by fighting the thousands of appeals filed by criminals in appellate courts. I note that in filling in the missing details from The Tribune's Nov. 4 article about the case of defendant Brian Neirynck.

After the lower court granted Neirynck's petition for post-conviction relief, my office agreed to consider appealing that ruling with the goal of keeping Neirynck's conviction intact. My office filed paperwork notifying the Indiana Court of Appeals of a possible state appeal in order to leave that option open. This allowed time for the hearing transcript to be prepared so we could review it and determine if there were legal grounds to further pursue an appeal. Ultimately in consultation with the St. Joseph County Prosecutor's Office, we concluded an appeal would be unwinnable, so we dismissed the appeal. The lower court's ruling that ordered Neirynck released after nine years in prison is unchanged.

Why not pursue an appeal anyway even if the case is unwinnable? An appeal is not a "do-over," to use the vernacular. The side appealing must prove error in the lower court's legal analysis and show a basis for the appeal, not simply disagreement with the outcome. If the Court of Appeals had heard the case and ruled against the state, then it could create an adverse legal precedent in case law that would hinder our efforts to oppose the appeals of future sex offenders.

This was an unusual case. It is rare for a lower court to grant a defendant's petition for post-conviction relief and put the state in the position of deciding to appeal. More typically, courts deny defendants' PCR petitions and the defendants then appeal. The state, in opposing such appeals, usually prevails.

County prosecutors often must make difficult decisions of whether to file criminal charges when one ex-spouse during a bitter child-custody battle accuses another ex-spouse of child sexual abuse. Prosecutors do not make these charging decisions lightly but only with serious reflection and a determination to seek the truth and obtain justice for young victims. No one wants to see an innocent person wrongly charged or wrongly convicted, and no one wants to see a guilty perpetrator go unpunished.

A defendant is not entitled to a perfect trial, but he is entitled by the Constitution to a fair trial. In this case, the court has vacated Neirynck's conviction and there will not be a retrial, but the defendant has not been exonerated. This is an inconclusive ending to an imperfect case. None of us is happy about the outcome of this exception to the rule, but Tribune readers should know that the attorney general's office works diligently every day to protect victims and uphold justice in thousands of other criminal cases in appellate courts.

Court - "Judges Weigh Phone Tracking "

If you have access to the WSJ, this is an interesting article, reporting that cellphone tracking by authorities is far more common than GPS tracking (which was at issue yesterday by the SCOTUS). From the very long story by Julia Angwin and Scott Thurm:

The widening practice also presents one of the biggest privacy questions in a generation: Do police need a search warrant to follow a person's minute-by-minute movements using satellite or cellphone technology? * * *

As the frequency of tracking has increased, more judges have raised the need for search warrants. More than a dozen magistrates have written opinions denying applications for court orders to track cellphones. The nation's roughly 500 magistrates act as assistant judges in U.S. District Courts, handling requests for search warrants and other types of surveillance.

The so-called magistrates' revolt traces its history to a 2005 opinion written by [Magistrate Stephen Smith of Houston, Texas].

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

Based upon our review of the record, we conclude that Mother has presented a prima facie case that, under the circumstances, the trial court abused its discretion in finding her in contempt. Accordingly, we reverse that portion of the order finding Mother in contempt. * * * Because the court indicated that its order that Mother pay attorney fees in the amount of $300 was based upon its contempt finding, we also reverse that portion of the court’s order related to attorney fees. * * *

For the foregoing reasons, we affirm in part, reverse in part and remand with instructions to vacate that portion of the order entered on December 27, 2010 finding Mother in contempt and ordering Mother to pay attorney fees of $300.

On January 12, 2011, the State filed notice of its intent to introduce evidence under Indiana Evidence Rule 404(b) consisting of photographic and testimonial evidence regarding a broken broomstick fragment found in Southward's cell on October 27, 2010. On January 14, 2011, the trial court held a pre-trial hearing. The trial court ruled that the evidence was admissible to show Southward's motive and intent, but prohibited the State's witnesses from testifying to Southward's remarks about the broomstick or referring to the broomstick as a weapon in their testimony.

On February 3, 2011, a jury trial was held. The trial court revisited the prior ruling on presentation of evidence surrounding the broken broomstick fragment. It found that such evidence was relevant to Southward's intent, and permitted the State and Southward to argue whether the broken broomstick fragment was a weapon. The jury found Southward guilty as charged. On February 14, 2011, Southward was sentenced to six years imprisonment, all executed. * * *

Based on the foregoing, we conclude that the admission of Evid.R. 404(b) evidence did not constitute fundamental error. We further conclude that the evidence was sufficient to convict Southward of possessing material capable of causing bodily injury while incarcerated, and that Southward's sentence is not inappropriate in light of the nature of the offense and his character.

Ind. Courts - Still more on: Supreme Court agrees to permit bulk distribution of and also remote access to the records of those courts using the Odyssey case management system

Updating this ILB entry from Sept. 14th, and this follow-up from Sept. 15th, the Oct. 2011 edition of Doxpop Docket contains a message from the firm president, Ray Ontko - some quotes:

I have exciting news: Doxpop has added 50% more courts, counties, and cases to the Doxpop network. We now provide information on over 19.8 million current and historical cases from over 249 courts in 77 (of 92) Indiana counties.

This is made possible by a recent decision by the Indiana Supreme Court. On September 13, 2011, the Court issued an order requiring that public information from the state-operated case management system ("Odyssey") be made available, for a fee, to authorized bulk recipients (such as Doxpop) in electronic form.

Doxpop has begun to receive Odyssey information and is integrating it into the Doxpop database and website. For the next few months, the information will be updated monthly, and we are working with the judiciary to provide near real-time updates in the new year. In the meantime, you'll have access to the additional historical information for over 7 million cases from 108 courts in 35 counties.

We have been working toward this goal of adding Odyssey information from the state to the Doxpop system for over 4 years. It is very gratifying to be able to bring you this additional information. Enjoy.

This article from the newsletter explains the details of how the new data is being incorporated and lists the new courts. The article concludes:

How is this all possible?

The addition of these courts is possible because the Indiana Supreme Court recently committed to making monthly snapshots of court information available in bulk from their case management system beginning in October 2011, and committed to making a near real-time data feed available on January 1, 2012.

There is a significant cost to Doxpop for accessing these data feeds, but we believe the added value for our customers makes this a good business decision. We hope you'll agree!

ILB: This integration of local court docket information from both the Doxpop and state systems is something the ILB has been urging since 2005. The user is the beneficiary.

Courts - "An angry Court gives New Orleans prosecutors a scolding"

Smith v. Cain, the case in which the SCOTUS agreed to consider another legal challenge to prosecutorial conduct in the New Orleans D.A.’s office, was argued yesterday.

The headline quoted above to Tony Mauro's National Law Journalstory yesterday, tells the tale. The story begins:

The Supreme Court took the New Orleans prosecutor's office to the woodshed on Tuesday, scolding its lawyer for what one justice said was a long history of accusations that the office has ignored the right of defendants to receive exculpatory evidence before trial.

Justice after justice, including conservative Antonin Scalia, admonished Assistant District Attorney Donna Andrieu for her office's failure, in the case before the Court, to turn over what they viewed as evidence that could have changed the course of the trial. "Surely it should have been turned over," Scalia said at one point. "Why don't you give that up?"

The setting for the Court's unusual display of anger was the oral argument in Smith v. Cain, a challenge to prosecutorial misconduct in the case of Juan Smith, convicted of murder in a 1995 rampage that left five people dead. Lawyers for Smith are asking for a new trial, citing statements that were withheld from defense lawyers impeaching the credibility of the only eyewitness to the crime.

The Court agreed in June to hear the case, even though it did not involve a new legal issue or a doctrinal split among circuits. This led to speculation – borne out Tuesday — that the justices docketed the Smith case to continue their scrutiny of the New Orleans prosecutor's office in the aftermath of last term's high court decision in Connick v. Thompson. That controversial 5-4 ruling reversed a $14 million civil rights judgment against the New Orleans prosecutor's office for similar withholding of evidence during the tenure of former prosecutor Harry Connick Sr.

Connick had also prosecuted Smith, and justices made it clear Tuesday that the win last term did not mean they were happy with Connick's legacy. The father of the famed musician, Connick served as New Orleans Parish prosecutor from 1973 to 2003.

ILB: The Court's 5-4 decision earlier this year in Connick v. Thompson was called by one writer, "one of the meanest Supreme Court decisions ever."

Ind. Gov't. - "Is that really the message that members of the Indiana General Assembly want to send to voters, especially in a state with one of the lowest voter participation rates in the nation?"

The law passed last year that leaves unopposed candidates off the ballot in municipal elections (see list of earlier ILB entries) takes another hit today, this time in an Indianapolis Stareditorial. The editorial continues:

Thankfully, the experiment with non-election elections may last for only one year. Leaders in both the House and Senate have vowed to repeal the law, which was pushed through the General Assembly this year.

Yet that's only one step in the right direction toward improving voter turnout in Indiana. A much more significant move would be pushing back Indiana's extraordinarily early 6 p.m. closing time for polls. A 7 p.m. or 8 p.m. deadline for voting would give many voters, especially those who commute to work or who have children to pick up at schools or baby sitters, a better chance of making it to their precincts on Election Day. Many other states already close their polls one, two or even three hours later than Indiana.

A third election reform that deserves serious consideration involves opening countywide voting centers throughout much of the state. Past experiments with Election Day voting centers in Wayne and Tippecanoe counties proved quite successful. The great advantage of the centers is that they allow voters to cast ballots at locations near where they work or attend school rather than in only specific residence-based precincts.

Indiana still conducts elections pretty much the same way it has for decades. Times have changed. Voters' needs have changed. The state needs to adapt.

2. THE CLERK OF THIS COURT IS DIRECTED TO TRANSFER ALL FILINGS
IN CAUSE NUMBER 49A02-1107-CR-590 TO CAUSE NUMBER 49A02-1106-CR-
486 AND THEREAFTER TO CLOSE THE DOCKET ON CAUSE NUMBER 49A02-
1107-CR-590.

3. ALL FURTHER FILINGS ARE TO BE MADE UNDER APPELLATE CAUSE
NUMBER 49A02-1106-CR-486.

4. APPELLANT'S MOTION TO SCHEDULE ORAL ARGUMENT IS GRANTED. THE
ORAL ARGUMENT WILL ADDRESS ALL OF THE ISSUES RAISED IN CAUSE
NUMBERS 49A02-1106-CR-486 AND 49A02-1107-CR-590. SPECIFIC
DETAILS ABOUT THE DATE, TIME, AND PLACE OF THE ORAL ARGUMENT
WILL BE PROVIDED IN A FUTURE ORDER.

FOR THE COURT, MARGRET G. ROBB, CHIEF JUDGE

(ORDER REC'D 11/01/11 AT 11:15 A.M.) ENTERED ON 11/02/11 KJ

11/02/11: ****** ABOVE ENTRY MAILED ******

11/07/11: ISSUED THE ENCLOSED ORDER:

11/07/11: HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:

2. THE APPELLEE'S BRIEF IN THE APPEAL OF THE DENIAL OF SHUAI'S
MOTION TO DISMISS (FORMERLY DOCKETED UNDER APPELLATE CAUSE
NUMBER 49A02-1107-CR-590, NOW CONSOLIDATED INTO THIS CAUSE)
SHALL BE FILED NO LATER THAN NOVEMBER 21, 2011.

3. ANY REPLY BRIEF SHALL BE FILED AND PHYSICALLY PRESENT IN THE
OFFICE OF THE CLERK, AND SERVED BY PERSONAL DELIVERY ON THE
APPELLEE, NO LATER THAN 4:30 P.M. DECEMBER 9, 2011.

4. THE ARGUMENT IS SCHEDULED FOR WEB-CAST AT WWW.IN.GOV/
JUDICIARY AND WILL BE TELEVISED ON A MONITOR OUTSIDE OF THE
COURTROOM.

5. EACH SIDE WILL BE ALLOTTED THIRTY (30) MINUTES FOR
ARGUMENT.

6. THE SCHEDULED PANEL MEMBERS ARE JUDGES NAJAM, RILEY, AND
MAY.

7. THE CONTACT PERSON FOR THE COURT IS MARTIN DEAGOSTINO AT
(317)234-4859.

8. IN ACCORDANCE WITH INDIANA APPELLATE RULE 52(C), COUNSEL OF
RECORD SHALL FILE WITH THE CLERK AN ACKNOWLEDGMENT OF THIS ORDER
NO LATER THAN FIFTEEN (15) DAYS AFTER SERVICE OF THIS ORDER.

FOR THE COURT, MARGRET G. ROBB, CHIEF JUDGE

(ORDER REC'D 11/07/11 AT 8:55 A.M.) ENTERED ON 11/07/11 KJ

11/07/11: ****** ABOVE ENTRY MAILED ******

In short, both appeals, the original bond denial appeal, and the appeal filed in October which, according to the Indy Star story at the time, seeks dismissal of the charges "on several grounds, including that attempting suicide is not a crime in Indiana and the state may not create a new crime just for pregnant women," will now be heard on Dec. 13th.

Law - Chicago mayor "calls for transparency in government — but the operations of his own office remain murky"

David Kidwell, Chicago Tribune reporter, has written a very long story on Mayor Rahm Emanuels denial of public records requests. How the story begins:

Mayor Rahm Emanuel has made it easier for the public to see who pays City Hall lobbyists, how much every city worker earns and where crime waves have rippled through Chicago neighborhoods.

It's Emanuel's way of keeping his promise to create "the most open, accountable and transparent government that the city of Chicago has ever seen."

But efforts to peer into the daily operations of the mayor himself — a man with enormous say over hundreds of millions of dollars in city contracts, hiring and regulations — are met by a stone wall.

The mayor refused Tribune requests for his emails, government cellphone bills and his interoffice communications with top aides, arguing it would be too much work to cross out information the government is allowed to keep private. After lengthy negotiations to narrow its request for two months of these records, the newspaper was told that almost all of the emails had been deleted.

Updating a long list of ILB entries on Bei Bei Shuai, the suicidal woman changed with feticide, including this post from July 28th, the Court of Appeals, via a docket entry dated yesterday, has ordered oral argument in Bei Bei Shuai v State. It is scheduled for 1:30 pm, Dec. 13, in the Supreme Courtroom and will be webcast. The panel is Judges Najam, Riley and May.

ILB: I'd like to provide more detail, but the Clerk's docket seems to be inaccessible, at least for now, and it is a state holiday. I do know that a number of amicus briefs have been filed.

Environment - Runoff harming Geist Reservoir

Bill McCleery has the story today in the Indianapolis Star. It links to a detailed report from the Environmental Law and Policy Center. Here is the Center's homepage. Here is its report telling "stories of Indiana officials' failures to protect clean water, some successes, and how you can make a difference." And here is its report focusing on Geist, titled "Phosphorus Pollution and Algae Blooms in the Geist Reservoir."

Ind. Gov't. - More on the new expungement (restricted access) law ...

Updating this ILB entry from Oct. 14, and adding to this long list of ILB entries on the topic, Maureen Hayden of CNHI has a story today in the New Albany News and Tribune about Michael Ross, who "has been fired from two jobs after background searches produced flawed criminal records, then rehired after providing the evidence to clear his name." Some quotes:

Ross, 29, may be the classic case of why a new state law restricting access to criminal records may be harder to enforce than legislators hoped. The law allows people charged or convicted of low-level, nonviolent crimes to petition the court to restrict access to their records, if the person remains out of trouble.

Last week, Ross told a legislative study committee that a class C felony robbery charge filed against him when he was 20 stayed on his record for years — and can still be found on a publicly accessible state website — even though it was later reduced to a misdemeanor charge of disorderly conduct.

Ross said the new law doesn’t go far enough to make sure records obtained by third-party vendors that sell the information to prospective employers are accurate — and that it could cost him even more dearly in the future. [ILB emphasis]

Courts - "Do Police Need Warrants For GPS Tracking Devices?"

"If the Supreme Court gave a green light [to warrantless GPS tracking, then] any officer can install any GPS device for any reason on anybody's car, even if the officer thinks it would be interesting to know where Supreme Court justices go at night when they leave the courthouse. No one would be immune from having a GPS device installed on their vehicles." Walter Dellinger

Monday, November 07, 2011

Ind. Courts - Appellate Clerk announces an entirely new docket by the end of the year

"Long-Awaited Changes to Clerk of Courts Website Are Finally Coming" is the heading to this article by state Court Clerk Kevin Smith in the Court Times. Phase I: Online Annual Registration and Updating of Roll of Attorneys Information, is something we all have encountered this year when registering. But Phase II may be a pleasant surprise:

Phase II will involve a complete overhaul of the Clerk’s Online Docket, which, at long last, is being replaced with an entirely new system. Users will be able to search for case dockets using multiple criteria (such as party name, court on appeal, trial court, appellate cause number, lower cause number, case type, litigant name, attorney name, trial court judge, date restrictions, etc.), and then further narrow and/or sort the results by similar criteria. They also will be able to view a docket from the results list, and then “go back” to their results screen again without having to run the query all over again.

Further, interested persons will now be able to use the Clerk’s Online Docket for research purposes in ways they have never been able to before. For example, if someone wanted to see how many appeals were filed from a particular trial court during 2011, she could simply specify the trial court and a date restriction of 2011, and up will come all appeals opened during 2011 from that trial court. She would then be able to look at the dockets in each case, gleaning relevant information from each and then going “back” to the list to look at the next one.

Other examples could include viewing the dockets in all appeals involving mortgage foreclosures, or in all appeals in which a certain attorney was counsel of record, or in all appeals filed with Court of Appeals during a given week. The possibilities are limitless concerning the information that attorneys, members of the media, and members of the public will now be able to gather easily from the Clerk’s Online Docket. We anticipate Phase II will be completed by the end of calendar year 2011.

ILB: My first question is, how far back does it go? My second question is, what does this portent, if anything, for electronic filing? When will we have a state system at least as accessible as PACER at the federal level (and without the fees)?

Back to the article. Phase III: Automatic Notification of Appellate Docket Activity, begins (but be sure to read it all):

Phase III will provide attorneys and members of the media and public with the unprecedented ability to receive e-mail notifications when certain activity occurs in an appellate case of their choosing. Through a free online subscription service, users will be able to choose the case or cases for which they wish to receive automatic e-mail notifications when certain docket entries (or any docket entry) is made. Subscriptions can be based on any number of criteria, such as: by appellate court (e.g., All, Supreme Court, Court of Appeals, or Tax Court); by appellate cause number; by trial court; by trial court cause number; by county of origin; by specific case type; and by attorney (i.e., cases in which a particular attorney has filed an appearance).

Subscribers will also be able, if they so choose, to further limit the e-mail notifications they receive by information type. For example, if they want to receive e-mail notifications only when orders and/or opinions are issued in all Tax Court cases, then they will be able to so specify. “Order” subscriptions can, in turn, be further narrowed by the specific type of order, such as orders on extensions of time, orders dismissing a case, orders on rehearing petitions, or orders on transfer petitions. Similarly, “opinion” subscriptions can be narrowed so that a person is notified only when a published opinion (or for that matter an unpublished (NFP) opinion) is issued.

Ind. Decisions - Transfer list for week ending November 4, 2011

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 13, 2011 list.]

Sean Thomas Ryan v. Dee Anna Ryan - this was a March 28, 2011 COA opinion where the panel ruled: "we conclude that the trial court abused its discretion in denying Husband’s motion under Rule 60(B)(8) without first holding an evidentiary hearing. We remand with instructions to conduct an evidentiary hearing at which the parties are given the opportunity to present evidence in support of or opposition to Husband’s motion for relief from judgment and for the court to grant relief as appropriate after considering the evidence presented at the hearing." See ILB summary here, 2nd case.

Jeff Wiehe has a lengthy story today in the Fort Wayne Journal Gazette, headed "Cleaning up leaky problem
Decrepit storage tanks litter state underground." Some quotes:

Two years ago, Indiana received $4 million in federal stimulus money from the American Recovery and Reinvestment Act to fix such leaking storage tank systems. The money – $2.6 million of which has already been spent – is going toward the cleanup or repair of 28 sites statewide.

But that will hardly make a dent in the number of leaking storage tanks throughout the state [more than 2,100], which property owners are responsible for and could require more than an estimated $400 million to completely fix.

The 28 sites chosen to receive the stimulus money all have something in common with Jerry’s Marathon:

“Typically, those are sites where the responsible party is no longer around or is bankrupt,” said Bruce Palin, IDEM’s assistant commissioner for the office of land quality.

In other cases, the owner of the property must pay for tank repairs as well as cleanup of the surrounding environment, according to IDEM. This includes testing the soil and groundwater to gauge the extent of the leak.

Failure to properly take care of any problems can result in fines and penalties. Since Jan. 1, 2009, IDEM has collected $227,689 in fines through the enforcement of cases involving leaking underground storage tanks.

For some property owners, finding out they even have an underground storage tank can come as a surprise.

Ind. Law - "Loved ones reburied Milo Blaker Sunday afternoon, there beneath a hickory tree on the hill visible from the kitchen window of the house he shared with his wife Betty for half a century"

Updating this ILB entry from July 6, 2011, here is reporter Laura Lane's Nov. 7th story in the Bloomington Herald Times ($$$). The headline: "Owen County widow wins battle over home burial: After legal wrangling, Milo Blaker is finally laid to rest on the property where he lived for 50 years."

The story on the Bloomington Herald-Times site is accompanied by a photo gallery.

A shorter version of the same story has been syndicated and can be read on the Gary Post-Tribune site.

On appeal, Dixey argues that the trial court erred when it refused to give three of his tendered jury instructions, two of which included lesser offenses and the remaining involved statutory interpretation that when general and specific statutes apply to a particular subject matter, the specific statute prevails over the general statute. Additionally, Dixey contends that the trial court erred when it prohibited him from asserting in his closing argument that the State had failed to prove that Dixey had committed theft, but may have proven that he had committed a lesser offense instead. Essentially, Dixey‟s defense was that the lesser offenses were more applicable to the proscribed conduct of which he was accused of engaging.

Although the State has the discretion to charge criminal defendants under the statute it chooses, criminal defendants are nonetheless entitled to present their theory of the case or, in other words, their defense. In this case, the trial court did not err by refusing to give Dixey‟s proposed instructions, inasmuch as they were neither factually-included lesser offenses nor correct statements of the law. Nevertheless, by preventing Dixey from discussing the lesser offenses during closing argument, he was foreclosed from presenting his defense. Consequently, we reverse and remand for a new trial.

Ind. Gov't. FSSA never completed the process to apply for the federal Medicaid expansion program that would have provided free birth control to low-income mothers who had recently given birth

That even though the General Assembly passed a law six years ago to authorize it. Heather Gillers had the investigative report yesterday in the Sunday Indianapolis Star. Some quotes:

The idea had much going for it. Health-care professionals said it would lead to healthier babies. Legislative analysts said it would save the state and taxpayers close to $7 million over five years. It undoubtedly would have led to fewer unwanted pregnancies, fewer children born into families not financially able to take care of them and fewer abortions. And if all that weren't enough, the plan had already been tried -- successfully -- in about 20 other states. The legislature in 2005 voted nearly unanimously to approve the law, which was expected to serve more than 27,000 women per month by the fifth year. But six years later, not a single person has benefited. And none of those millions of dollars has been saved.

WHY? The short answer is that the state's Family and Social Services Administration never completed the process to apply for the federal Medicaid expansion program that would have provided the free birth control. * * *

The legislation required Gov. Mitch Daniels' Office of Medicaid Policy and Planning -- an office within FSSA -- to apply to federal officials for the Medicaid expansion before Jan. 1, 2006.

It didn't.

The Medicaid office sent its application in a year late, and then -- over the ensuing five years -- withdrew it, resubmitted it, and then withdrew it again.

Law - "The growing movement among grandparents' groups has alarmed many parents and their advocacy groups nationwide"

That is a quote from a long AP story by Stephanie Reitz, headlined "States' grandparent visitation laws raise concern," datelined Hartford, Conn., and published Nov. 5, 2011. Some quotes from mid-story:

All 50 states have laws governing the conditions for non-parent third parties seeking visitation, but it was only in 2000 that the U.S. Supreme Court's ruling said none of those laws can infringe on the rights of competent parents.

That includes determining who can spend time with their children, with courts stepping in to order non-parent visitation only under tight circumstances deemed in the child's best interest.

That's where state laws and court rulings have evolved to include conditions that vary widely from one state to the next. The circumstances also vary, from intact two-parent families being sued by grandparents to situations stemming from thorny divorces and remarriages, disputes with one parent after another dies, and other cases.

In some states, grandparents can sue for visitation only if they have been completely cut off by custodial parents. In others, they must show their relationship with the grandchild was similar to that of a parent. In yet others, they must prove with "clear and convincing evidence" that the child will suffer irreversible harm without the visits.

And while some states have a combination of those standards, others have very few and give grandparents far more latitude to present their cases.

That can include deposing their adult children, seeking the parents' medical and financial records and other time-consuming actions. And some state courts have ruled that even if the grandparents lose, the parents can't get their legal bills reimbursed.

Connecticut is not the only state struggling with the issue. In June, Alabama's state Supreme Court struck down its law as unconstitutional because it included grandparent visitation rights over competent parents' objections.

Attorneys in the case have asked the U.S. Supreme Court to take up the issue, backed by officials in Ohio, Hawaii, Louisiana, Michigan and Washington.

Connecticut, Florida and Arizona are considered among the most parent-friendly based on their laws or court precedents. Others are considered more grandparent-friendly, including Utah, Kansas and Oklahoma.

ILB: The story briefly quotes Karen Wyle, an attorney in Bloomington. The ILB quoted Ms. Wyle on Jan. 31, 2010 and again on Feb. 26, 2010.

The Alabama case discussed in the story that is on appeal to the SCOTUS is E.R.G. v. E.H.G. See discussion in SCOTUSbloghere. Here are the docket entries.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/7/11):

No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 11/14/11):

Monday, November 14th

1:00 PM - Andrew Conley v. State of Indiana (58S00-1011-CR-634) -
Conley, a teenager, pleaded guilty to murdering his younger brother, and the Ohio Circuit Court sentenced him to life without parole. In this direct appeal, Conley argues the sentence was inappropriate.Where: The argument will be conducted at Indiana University – South Bend in the Recital Hall located in Room 158 of Northside Hall, 1700 Mishawaka Ave., South Bend, IN 46634-7111.

3:30 PM - Jerrme Cartwright v. State of Indiana (82S01-1109-CR-564) -
Cartwright was convicted of attempted battery with a deadly weapon and other offenses in the Vanderburgh Circuit Court. A majority of the Court of Appeals panel reversed the conviction and remanded the case for a new trial based on Batson v. Kentucky, 476 U.S. 79 (1986). Cartwright v. State, 950 N.E.2d 807 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Where:
The argument will be conducted at the Patrick F. McCartan Courtroom, 1170 Eck Hall of Law, Notre Dame Law School, Notre Dame, IN 46556.

Wednesday, November 16th

9:00 AM - Roy Lee Ward v. State of Indiana (74S00-0907-PD-320) - Ward’s convictions and death sentence were affirmed on direct appeal in Ward v. State, 903 N.E.2d 946 (Ind. 2009) and on reh’g 908 N.E.2d 595 (Ind. 2009). Subsequently, the Spencer Circuit Court denied post-conviction relief, and Ward brought this appeal. Ward argues that he was deprived of his right to the effective assistance of counsel, that the Indiana death penalty statute is unconstitutional, and that the prosecutor’s argument concerning the conditions of confinement entitles Ward to relief.

9:45 AM - R.L. Turner Corporation v. Town of Brownsburg (32S01-1109-PL-573) - After the Hendricks Superior Court entered judgment for the Town of Brownsburg ("Town"), the court granted the Town's petition for attorney's fees. The Court of Appeals affirmed, concluding the judgment's award of "Costs to be assessed" included an award of attorney's fees for frivolous litigation with the amount to be determined at a later date. R.L. Turner Corp. v. Town of Brownsburg, 949 N.E.2d 372 (Ind. Ct. App. 2011), vacated. The opinion also states that "a petition for attorney's fees may be filed by the prevailing party no later than sixty days after final judgment has been rendered." Id. at 382. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: this was a May 6, 2011 COA opinion involving attorney's fees, including: "Hereafter, post-judgment requests for attorney's fees by a prevailing party in a frivolous lawsuit may be filed no later than sixty-days after final judgment has been rendered."

10:30 AM - Michael Baker v. State of Indiana (89S01-1109-CR-543) - Baker was convicted of burglary following a jury trial in the Wayne Circuit Court. In a not-for-publication Memorandum Decision, the Court of Appeals reversed the burglary conviction on grounds there was insufficient evidence of intent to commit theft inside the church that Baker had entered. Baker v. State, No. 89A01-1010-CR-536, slip op. (Ind. Ct. App. Jun. 17, 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

Ind. Courts - More on: Disciplinary charges have been filed against the Hammond City Court Judge, Jeffrey A. Harkin

HAMMOND | City Judge Jeffrey A. Harkin not only faces the voters Tuesday but also a hearing later this month on allegations his traffic school violated state laws and the Indiana Code of Judicial Conduct.

The Indiana Commission on Judicial Qualifications is seeking to discipline Harkin, who has been city judge since April 2001.

A two-day hearing is set to begin Nov. 22 in Indianapolis.

Harkin said this week he cannot discuss the matter presently.

"There are ongoing discussions with state authorities regarding the allegations," Harkin said.

His opponent in the election, Hammond attorney Jim Foster, running as a political independent, said, "The allegations are he was dismissing (traffic) cases on his own and not including the prosecuting attorney. In the American system, judges don't dismiss cases.

"He also wasn't reporting this to the (Indiana Bureau of Motor Vehicles). The allegations are that he was told four years in a row to please quit that. It's just a matter of not bothering to read and follow the law," Foster said.

Ind. Law - "Ken Nunn’s law: Bloomington attorney was one of the first to use advertising in a big way"

The Bloomington Herald-Times has a long report today ($$$), written by Rebecca Troyer, on attorney Ken Nunn. Sadly, it is behind a paywall; it is a great, don't miss story that begins:

His face and phone number are on phone books, billboards and bus wraps. Local cable viewers could probably quote his TV commercials — “it’s just that easy” — and IU students wave to him from Kilroy’s when he drives down Kirkwood Avenue in his red Mercedes.

He’s Ken Nunn, a personal injury attorney who 44 years ago launched his Bloomington career with a small-potatoes solo practice and now oversees a 75-person law office in a 30,000-square foot building along Ind. 37 that is itself an advertisement. The law office has 78 telephone numbers, 28 vehicles, 18 furnaces and air conditioning units, and a $200,000 security system. Twelve attorneys, five paralegals, and an assembly line of other support staff are working on about 3,000 active cases.

How Nunn transformed himself from a high school dropout with a $75 car to a wealthy icon of personal injury law with a mini-fleet of luxury automobiles is a Horatio Alger story of sorts. His success derives from an unusual combination of marketing genius, dogged determination and lucky timing.

Ind. Gov't. - NE Indiana counties enter debate over wind energy

Angela Mapes Turner of the Fort Wayne Journal Gazette today takes a long look at regulation of wind turbines. This topic won't be new to ILB readers, here is a long list of earlier entries on the subject. From today's comprehensive story:

Developers say there’s plenty of energy to be harnessed in the region’s wind, but how – and if – that happens depends not only on government incentives to big wind developers but home rule in the region’s rural counties.

David Sewell, Whitley County’s executive director of planning and building, describes himself as an “eternal optimist.” He’s been a public planner for 35 years, nearly half that time in Whitley County, and he’s seen his share of land-use battles – landfills, major industrial sites, large farming operations.

The protracted fight over wind energy trumps them all.

“These issues, these structures, they go a little beyond what we normally deal with, as far as land-use jurisdiction goes,” Sewell said. “This one is definitely unique.” * * *

“Industrial wind turbines are exactly that – utility-scale industrial power plants – turbines that generate electricity,” [a citizen] group says on its website. “As such, they should be sited in the appropriate locations, with setbacks sufficient to have no impact on residential areas.”

The group cites multiple concerns about living near industrial wind farms, such as loss of sleep from noise and vibrations, declining property values and an effect called “shadow flicker” – the strobe-like flashing made when massive twirling blades cross the sun and create shadows. * * *

Most environmental groups, including the Hoosier Environmental Council, have spoken in favor of wind-energy development and said the environmental effects on land and wildlife are negligible.

Some environmentalists, however, contend wind turbines are killers of birds and bats; the U.S. Department of Energy offers research that shows more birds are killed by flying into buildings, cars, high-tension lines or communication towers – even by house cats – than by wind turbines.

[Clinton Knauer, DeKalb County zoning administrator] said the hardest thing about crafting DeKalb County’s ordinance has been figuring out what research to rely on.

Not knowing whether research has been influenced by pro- or anti-wind lobbies, and not having historical references for how wind energy could play out in a community like DeKalb County, has made crafting an ordinance to suit DeKalb’s needs a challenge. Knauer said the DeKalb plan calls for board approval for special exceptions of tall structures, which he believes will be a saving grace for anything the ordinance might have missed.

“There’s not a lot of information out there that’s unbiased,” he said. “There’s not a lot of apples-to-apples comparisons.” * * *

Northeast Indiana residents have only to look to the east to see what the future could look like. In 2008, Ohio signed a renewable-energy policy said to be the third-most aggressive in the country, according to the Ohio Department of Development’s Energy Resources Division.

The standard translates into at least 6 gigawatts of wind and solar capacity, enough to power 1.8 million homes, the agency said.

Indiana’s renewable-energy standards, by comparison, have been called passive by some environmental groups, including the Hoosier Environmental Council.

At the end of 2010, Ohio rated a trifling 10 megawatts on the American Wind Energy Association’s wind-capacity map. So far this year, its capacity has grown to 112 megawatts, much of that from a development in Van Wert and Paulding counties in northwest Ohio.

That ongoing project, Blue Creek Wind Farm, calls for 175 turbines, installed by Iberdrola Renewables Inc., the U.S. division of a Spanish company that is the world’s largest wind-power provider.

Iberdrola Renewables said they provide northwest Ohio residents with about $1.1 million in annual lease payments to local landowners.

Ind. Gov't. - “Traditionally everything is paid by the employer so there is no incentive to shop for prices or be preventive or consider not going to ER if you don’t have to.”

That is a quote from a long story today on the State of Indiana's move to high deductible health insurance, reported by Niki Kelly of the Fort Wayne Journal Gazette. First, some quotes from today's story:

INDIANAPOLIS – Indiana is leading the way in enrolling its employees in consumer-driven health plans that feature a health savings account, whether they like it or not. * * *

“Would I rather have traditional insurance? Yes,” said Allen Superior Court Judge David Avery, who is on the state’s health plan as a state-paid trial judge. “But the alternative is not affordable for me.”

He said the health savings option is working well for him and his family largely because they don’t have a lot of medical issues.

“It is to me an acceptable substitute for the traditional medical plan,” Avery said. “If you can belong to the plan for a couple years without any major medical problems, then you can build up savings and you feel a little more secure.”

In traditional health plans, employees pay a significant premium out of their paycheck for health insurance while employers also pick up some of the cost.

Services are covered by the insurance plan with the employee paying small fees for a prescription or doctor visit or some percentage of the bill.

A consumer-driven health plan is different because it is a high-deductible plan in which the employees pay little in premiums from their paychecks.

Most of these plans work together with a health savings account, in which employers put in money to cover medical costs. Employees can also contribute to the account out of their paychecks before taxes.

Employees are responsible for the full cost of medical care until the deductible has been met.

Employees can use the HSA to offset these costs. The insurance split (typically 80 percent-20 percent) kicks in after deductible is met. Employees pay 20 percent until they reach the out-of-pocket maximum. * * *

“The entire concept is to get some level of consumerism into health care,” [State Budget Director Adam Horst] said. “Traditionally everything is paid by the employer so there is no incentive to shop for prices or be preventive or consider not going to ER if you don’t have to.”

He conceded the traditional plan has gotten expensive but said that’s not why most employees are switching.

“You give me money for my health savings account, I get low premiums and I control my own destiny. To me it’s a no-brainer.”

That 2010 analysis also showed those using the health savings accounts are making different health care choices.

For instance, they visit the emergency rooms less, make fewer trips to the doctor and rely on generic prescription drugs more.

ILB: Yes, but how realistic is it to think that the consumer with a high deductible plan can actually "shop" for health care savings? This lengthy Oct. 27, 2011 story from the Wall St Journal, reported by Anna Wilde Mathews, titled "Push for Health-Cost Data ," addresses that issue directly. Ironically, Indiana is the focus. Some quotes:

The issue is arising because of a major shift in health-insurance plan design: More and more Americans have high-deductible insurance that requires them to pay cash out of pocket before coverage kicks in. These consumers are spending their own money on services such as imaging tests, so they want to shop around, just as they do when they buy a flat-screen TV. The idea is that if workers can compare the prices of, say, a colonoscopy or mammogram across various doctors, they may choose less costly care.

But Web services that reveal health-care pricing typically have to be built using data that are collected by the health insurers, which are generally the ones processing medical bills for an employer's workers. Some, such as Aetna Inc. and Cigna Corp., are sharing at least certain information with third-party firms when clients ask them to do so. In other cases, according to benefits consultants, vendors and employers, insurers are declining to let the information be handed over to the outside companies.

Denny Darrow, chief of staff at the Indiana state personnel department, said state officials want to hire a vendor to create a pricing tool for the approximately 26,000 workers the state covers. Like other big employers, the state is self-insured, so it essentially pays its own bills and uses a health plan mostly for administrative tasks and its provider network. But WellPoint Inc. is declining to let him provide billing-claims data to two outside vendors the state wants to test, an action that requires the health plan's permission under his contract, he said.

WellPoint is "basically telling us, as a customer, you don't own the data you pay for," said Mr. Darrow, who said the situation has been "frustrating."

Ind. Decisions - More on: COA rules in Muncie City Council election dispute

The city election is but two days away, but Richard Ivy continues to seek to overturn his Democratic primary loss in a Muncie City Council race.

Julius Anderson, the current District 6 council representative, won a three-candidate race in the May 3 primary, defeating Ivy by 10 votes. Ivy later filed a lawsuit, alleging Anderson violated state law by entering two polling places while voting was under way. * * *

On Friday night, Ivy's attorney, John Brooke, said he and two other lawyers, Andrew Upchurch and Ralph Dowling, had filed a petition to transfer Ivy's case to the Indiana Supreme Court.

In a 15-page document, Ivy's attorneys call Anderson's "deliberate acts" on May 3 "pervasive and widespread."

Ivy had no way to prove how many voters, if any, were influenced by Anderson's "shenanigans" because "secret ballots prevent Ivy from offering such proof," the attorneys wrote.

The request for the Supreme Court to consider the case claims that the appeals court ruling "essentially opens the doors to any candidate who wishes to electioneer within the chute at precincts located in Delaware County."

"Voters in Delaware County, and across Indiana, may eventually be forced to trudge their way through a gauntlet of candidates electioneering in the chute," the document said.

Lewis is accused of vouching for Byron "Father Barney" Canada, who is already serving time for charging advance fees to churches and religious groups for building projects that never happened.

The United States Attorney's Office said that all the while, Canada was posing as a priest affiliated with Notre Dame, and Lewis, even with prior knowledge of a previous fraud conviction, spoke for him.

While thousands of Hoosiers may spend “Cyber Monday” shopping online for holiday gifts, state Sen. Luke Kenley may be on Capitol Hill asking Congress to close a multi-billon tax loophole long enjoyed by Internet retailers.

The influential Republican state lawmaker has asked to testify at a congressional hearing in support of federal legislation that would compel online-only retailers to start collecting and remitting sales taxes like their bricks-and-mortar competitors do.

The hearing in front of the House Judiciary Committee is scheduled for the Monday after Thanksgiving — the biggest online shopping day of the year.

The timing is intentional: Cyber Monday sales hit a record-breaking $1 billon last year, and a big chunk of those sales were made by online-only retailers like Amazon.com, which doesn’t collect sales tax on purchases.

Kenley says his testimony, if he were allowed to give it, would boil down to a mantra he’s been repeating for more than a decade to get Congress to act on the issue: “This isn’t about imposing a new tax. This is about collecting a tax that’s already owed.” * * *

He’s pushing for a federal fix to the current law says a state can’t force an out-of-state Internet entity to collect and pay the sales tax the state’s residents are required to pay on purchases made in brick-and-mortar stores.

On his way back to Indiana, Kenley heard about the lawsuit slapped against the state of Indiana by the Indianapolis-based Simon Property Group, the nation’s largest mall owner. In the lawsuit filed Thursday, Simon contends the state’s refusal to make Amazon collect and remit the state’s 7 percent sales tax amounts to an “illegal and unconstitional” taxpayer-funded subsidy to the Seattle-based online retail giant.

Simon’s argument is based on the fact that Amazon does have a presence in Indiana: three large distributions centers that the online retailer agreed to build in Indiana after the state gave the company a pass from having to collect the state’s 7 percent sales tax.

Kenley said the lawsuit, if successful, won’t solve what he sees as a bigger problem that needs a national solution.

“But it does focus more attention on the issue,” said Kenley, who heads a multi-state coalition pushing for a federal online sales tax bill. Betsy Laird, senior vice president of public policy at the International Council of Shopping Centers, said attention to the issue is mounting because state lawmakers like Kenley know the impact of losing tax revenues at a time when states are strapped for cash.

Friday, November 04, 2011

Ind. Courts - "Indiana Journalists Learn About the Courts"

Here is an article by Kathryn Dolan, Indiana Supreme Court Public Information Officer, in the most recent issue of Indiana Court Times. It begins:

The Indiana Supreme Court conducted its third annual Law School for Journalists on July 20th. Forty-five television, radio, newspaper and Internet journalists attended the one day “law school” that was held at the Indiana University School of Law–Indianapolis.

Stage collapse - Still more on "State Fair seeking access to union's records on stagehands"

Updating this ILB entry from Oct. 19th, "Union hands over records on injured State Fair stagehands" is the heading to this report last night by Sandra Chapman on WTHR TV 13. A few quotes:

INDIANAPOLIS - At least nine stagehands from the International Alliance of Theatrical Stage Employees Local 30 felt the brunt of falling steel when the scaffolding collapsed at the Indiana State Fair. * * *

Now, all of their confidential work records are in the hands of Dept. of Labor investigators, turned over Wednesday as part of an agreement with the state.

Investigators want to know if the workers, some of whom helped build the stage, were properly trained. * * *

Union records were initially part of a standoff after investigators from Indiana's Occupational Safety and Health Administration showed up at Local 30 with a search warrant.

The union took the state to court calling the warrant "intrusive."

Now after weeks of behind the scene negotiations, payroll, disciplinary and safety training records for those killed and injured rest with the state, but neither side wanted to talk about the deal.

13 Investigates has learned as many as half a dozen additional union members were assigned to the State Fair as part of the Sugarland stage construction. The state is still waiting for their records and eyewitness accounts.

"Anyone who was there at the site of this tragedy is an eyewitness," said IATSE Local 30 Attorney Bill Groth, explaining why union reps also want to be present for member interviews about the collapse.

Training records for the nine stagehands injured that night will play a key role in the IOSHA investigation. That's because the Department of Labor must determine if the "employer" of these stagehands was negligent. But the big issue still to be determined by the court is whether Local 30 or the Indiana State Fair Commission was the legal employer the night of August 13th.

Dana Hunsinger Benbow has the story here in the Indianapolis Star. Some quotes:

Simon Property Group today filed a lawsuit against the state of Indiana to force it to start collecting taxes from Amazon.com for all sales made in the state.

Simon, the nation's largest mall owner, said it is not seeking monetary damages for itself but is filing the complaint on behalf of the state's bricks-and-mortar retailers, many of whom say they are at a competitive pricing disadvantage because they must collect Indiana sales tax. Many are tenants at Simon’s 27 shopping centers in Indiana.

The suit, filed in Marion County Superior Court, asks that the court "mandate (the Indiana Department of Revenue) to issue an assessment on Amazon for unpaid gross retail taxes and use taxes and all applicable interests and penalties." * * *

The state in recent years has given Amazon a pass on collecting sales tax as the company agreed to put four large warehouses in Central Indiana and hire thousands of workers.

According to this story in Bloomberg, the case is State of Indiana ex rel. Simon Property Group LP v. Indiana Department of Revenue, 49D13 11 11 PL 042652, Marion County, Indiana, Superior Court (Indianapolis).

Courts - "Ruling could save Hoosier Park millions"

From the Nov. 2nd Anderson Herald Bulletin, some quotes from a long story by Abbey Doyle that begins:

ANDERSON, Ind. — If a decision made by a Delaware bankruptcy court stands, Hoosier Park Racing and Casino would owe about $10 million less in taxes each year, Chief Operating Officer Jim Brown said.

The ruling — issued Oct. 26 — could be appealed by the Indiana Department of Revenue up to 14 days after the issuance. An appeal hadn’t been filed as of Wednesday.

During Indiana Live’s bankruptcy proceedings, the casino raised an issue of being unfairly taxed on money it doesn’t retain. The casino is currently in the middle of Chapter 11 bankruptcy reorganization and raised the issue in late July about Indiana Department of Revenue’s interpretation of state tax law. Hoosier Park, which emerged from bankruptcy last month, joined the suit in August.

The racinos are required to set aside 15 percent of their revenue that goes directly to purses for horse racing and breed development for horse racing, Brown said. That money — although it goes directly to the racing industry and never to the racino — is still taxed as revenue.

Hoosier Park has long contended the practice was unfair, said John Keeler, general counsel for Centaur Holdings LLC, the racino’s parent company. But Hoosier Park officials have never raised the issue in court; instead the organization has lobbied “very hard” to legislators where the racino has always felt as the most appropriate venue to “battle it out,” Keeler said.

Indiana state regulators are looking to tighten the reins on Hoosier animal farms because of the environmental threats they pose.

Concentrated Animal Feeding Operations are regulated at the federal and state levels, and officials will vote next week to strengthen the current rules. * * *

Tim Maloney with the Hoosier Environmental Council believes the regulations that will be finalized next week offer inadequate protection.

"Our recommendations have not been included,” Maloney said. “We're disappointed the state is not adopting stronger rules, and we've had a number of instances of spills, water contamination and fish kills that resulted from the manure spills.”

A representative from the Indiana Pork Producers Association said Indiana's pork farmers are good stewards of the environment, and part of that includes a responsibility to work with federal and state agencies to develop regulations.

Courts - The variability of the writing of two judges known to write their own opinions, Richard A. Posner and Frank Easterbrook, was markedly lower and more consistent than any current or recent Justices on the SCOTUS

That is (a paraphrase of) one of the findings of a summary taken from Judicial Ghostwriting: Authorship on the Supreme Court, a 38-page article written by University of Toronto Professors Jeffrey Rosenthal and Albert Yoon published in the Cornell Law Review. The summary appears in this Nov. 4th post by Aaron Tang in SCOTUSblog.

More from the introduction to the Cornell LR article:

Based on the use of common function words, we find that Justices vary in writing style, from which it is possible to accurately distinguish one from another. Their writing styles also inform how clerks influence the opinion-writing process. Current Justices, with few exceptions, exhibit significantly higher variability in their writing than their predecessors, both within and across years. These results strongly suggest that Justices are increasingly relying on their clerks to write opinions.

Allen County Council members have decided to revisit decisions made last month in which judges and magistrates faced salary cuts and sworn police officers were asked to double the contribution to their retirement funds.

Council members will vote Nov. 17 whether to rescind the two decisions made at its October meeting, said Council President Darren Vogt, R-3rd. * * *

“There is an opinion that there might be a legality issue with what the council did,” Vogt said.

Allen County judges, who receive the bulk of their pay from the state, would get a $5,000 annual cut in pay after council members voted to eliminate the county subsidies to their salaries. Magistrates also would be affected, with each taking a $4,000 hit to their salaries.

The state pays county judges $125,647 annually.

The cuts in the judges’ salaries – a decrease of about 3.9 percent – would have saved the county about $100,000, Vogt said. But the Indiana Constitution forbids cutting the pay of a Circuit Court judge in midterm.

In 2007, Grant County was ordered to pay $5,000, plus interest and costs, to a former judge whose pay was cut by the council.

Council members Roy Buskirk, R-at large, and Larry Brown, R-4th, initiated the discussion on increasing the retirement fund. Buskirk said the legal aspects were not discussed before taking a vote because the county does not have an attorney on staff.

“Several years ago, in an effort to cut expenses, we eliminated the county attorney fund,” Buskirk said. “There continue to be ongoing discussions with the judges and the sheriff’s department, and we hope to have the legal information we need at the next meeting.” [Emphasis added]

[Updated Nov. 6, 2011] A reader writes:

I'd like to clarify that Allen County and it's departments have access to a number of attorneys who are kept on retainer. It is true that the County Council previously eliminated funding to have its OWN attorney, however, the Council is able to seek advice from the County Attorney or the three Assistant County Attorneys (who are all paid out of the County Commissioner's budget) if it so chooses.

That is the headline to an Indianapolis Starstory reported by Carrie Ritchie. Some quotes:

Lora Hoagland struggles to get her two sons to Franklin Township schools each day.

The district axed its bus service this year to cut costs. Now, a nonprofit offers transportation -- but for a fee.

Hoagland, 38, can't afford to pay, so she drives her children to school. * * *

Frustrated, she sued the district this week to try to get it to reinstate its bus services. She and her attorneys say they'll ask a judge to make it a class-action suit on behalf of other parents in the district.

"This is not just about me or my kids," she said. "It's about everyone. I'm the one taking the step forward because somebody has to. Somebody has to start the fight."

The school district says the suit will fail, but Hoagland seems to have some support.

Rep. Mike Speedy, R-Indianapolis, has asked the Indiana attorney general's office to issue an opinion on the legality of the district's new arrangement, and he's considering drafting legislation that would prevent such arrangements in the future.

Hoagland and her attorneys claim in the suit filed Tuesday in Marion Superior Court that allowing an outside organization to charge parents for bus service to schools violates a provision of Indiana's constitution that says public education must be tuition-free.

The district cut bus service after local taxpayers rejected a referendum in May that would have brought the district an extra $13 million each year for seven years. * * *

Central Indiana Educational Service Center, which handles busing to Franklin Township Schools, charges parents $47.50 per month for the first child and $40.50 for each additional child. * * *

In 2010, the attorney general's office issued an opinion saying that schools cannot charge bus fees, but this situation is slightly different because CIESC -- not the schools -- is charging parents.

Still, Hoagland's attorneys are hopeful that opinion will strengthen their case.

"The point is, parents shouldn't have to pay for bus service, regardless of who's charging them a fee," attorney Tom Blessing said. "That's what taxes are for."

It can be difficult enough to reschedule a weeklong trial in Tippecanoe County courts, let alone one expected to last three weeks.

But court staff will likely have to for Edward C. Zaragoza, a Mooresville man charged with felony murder, murder, conspiracy to commit robbery and nine other felonies in the April 8, 2010, shooting death of 21-year-old Kory D. Rogers.

The Indiana Supreme Court last week suspended Baker from practicing law for six months and found him guilty of violating professional conduct rules in another homicide case. He will not be automatically reinstated.

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

Randall Perkins appeals the decision of the full Worker's Compensation Board (the “Board”) affirming the decision of a single hearing member, who had concluded that Perkins' employer, Jayco, Inc. (“Jayco”), is not responsible for providing palliative care to Perkins. * * *

The Board erred when it concluded that a finding that Perkins has reached MMI allows for an inference that future treatment is not needed. But that error is harmless because other findings support the Board's decision denying Perkins' Adjustment of Claim. Specifically, Dr. Reecer's report supports the finding that the future medical treatment Perkins' requests is not causally related to his December 2003 work injury. Perkins' arguments to the contrary go to the weight of the evidence, which is not subject to review on appeal. Thus, we affirm the finding in paragraph 4. And because the Board found that the treatment requested is unrelated to the compensable injury, we must conclude that the Board did not err when it denied Perkins' request for palliative care. We affirm.

Thursday, November 03, 2011

Plaintiffs Jeff and Liz Anderson
sued Gulf Stream, the manufacturer of their 2009
model year Tourmaster RV, claiming that the Tourmaster
had numerous defects and that Gulf Stream misrepresented
the size of the vehicle’s engine. The district court entered summary judgment in favor of Gulf Stream on
all of the Andersons’ claims.

We conclude that the district court erred in dismissing
the Andersons’ Indiana law claims for breach of express
warranty and breach of implied warranty, and their
federal claims under the Magnuson-Moss Act, on the
ground that the Andersons did not give Gulf Stream
a reasonable opportunity to cure. We find that the evidence,
when viewed in the light most favorable to the
Andersons, supports their contention that they gave
Gulf Stream a reasonable opportunity to cure.

We also find that there is enough evidence in the
record to support the Andersons’ claim that Gulf
Stream committed an “uncured” deceptive act under the
Indiana Deceptive Consumer Sales Act in representing
that the “2009” model Tourmaster featured a larger
engine than the one the Andersons’ “2009” Tourmaster
came with. Although the pertinent federal regulations
are not a model of clarity, we conclude that the regulations
did not permit Gulf Stream to designate the
Andersons’ Tourmaster, which was completed during
Gulf Stream’s 2008 production cycle and had the characteristics
of a 2008 model year Tourmaster, as a “2009”
Tourmaster. However, because there are disputed questions
of fact surrounding what information Gulf Stream
disclosed to the Andersons, neither party is entitled to
summary judgment on this claim.

Finally, we conclude that it was proper for the district
court to enter summary judgment in favor of Gulf Stream
with respect to the Andersons’ claims for fraud and for
the commission of an “incurable” deceptive act under
Indiana law because the evidence does not support
the inference that Gulf Stream acted with an intent to
deceive.

Courts - "Supreme Court examines reliability of eyewitness testimony"

Joan Biskupic of USA TODAY has a long story today about the oral argument before the SCOTUS yesterday in the case of Perry v. New Hampshire. The story begins:

WASHINGTON – Supreme Court justices on Wednesday challenged the notion that testimony from arguably unreliable eyewitnesses should be specially scrutinized at trial because of how it can lead to wrongful convictions.

"Why is unreliable eyewitness identification any different from unreliable anything else" introduced at trial, Justice Antonin Scalia asked during arguments in a New Hampshire case.

"Eyewitness identification evidence is unique," responded lawyer Richard Guerriero. He represents a man whose theft conviction was based partly on the report of a woman who said she watched him out her apartment window. Guerriero called mistaken IDs "the leading cause of miscarriages of justice."

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

The Dodds raise one issue, which we restate as: whether the trial court erred by granting summary judgment to American Family. * * *

[T]he Dodds admitted to the trial court that their claims for punitive damages and intentional infliction of emotional distress could not survive American
Family’s second motion for summary judgment. Having made that admission to the trial court, the Dodds, like the plaintiff in Hockett, are bound by their admission and cannot proceed with those claims on appeal. The trial court did not err by granting American Family’s motion for summary judgment on the Dodds’ claims for punitive damages and intentional infliction of emotional distress. The Dodds’ claim for breach of contract remains to be addressed on remand.

A lawsuit against two prominent Indianapolis-area law firms can proceed to trial after a judge denied the firms' motions to dismiss the case.

Hamilton Circuit Judge Paul Felix ruled Friday that the legal malpractice claims against Krieg DeVault and the Noblesville firm of Church Church Hittle & Antrim can be heard in a jury trial set for Dec. 12.

The firms are being sued by retired Noblesville grain and livestock farmer Henry Anderson, 70, and his wife, Arla, 68. They retained lawyers from the firms for advice in the sale of farmland inherited from Henry Anderson's father in 2003.

Ind. Gov't. - "Outdoor burning has neighbors at odds, city laws in question"

An Indianapolis woman is taking on her neighbor and city codes over the use of an outdoor fireplace. * * *

When the burning of a substance interferes with the health or well-being of any individual, that individual has the right to demand the burning be stopped, [Karen] Laymon contended.

But City-County Councillor Mary Moriarty Adams, who represents the area where Laymon lives, said she has spoken to a code enforcement supervisor and sought guidance by legal council, and their current reading of the codes allows Laymon's neighbor to use the chiminea as long as proper products are burned in the device.

When confronted with the wording of Section 511, though, Moriarity conceded Laymon may have a valid argument. [Section 511-702 of the Code of Ordinances is quoted in the story]

"This may be a case of a constitutional question," Moriarity said. "City legal needs to take a look at this."

Courts - More on "Change in crack sentencing means early releases"

Updating yesterday's entry, Dan Browning and Pam Louwagie of the Minneapolis Star-Tribune have a lengthy story today detailing the nuts and bolts of implementing the early releases. A sample:

Hundreds of files fill a space in the federal public defender's office that they jokingly call the "crack room," Roe said. At least two lawyers review each file. "The last thing we want to do is miss somebody," she said.

So far, they've found 21 candidates for "immediate release," Roe said. But the number is still in flux. The U.S. attorney's office said it has identified 28 potential candidates for immediate release; the Probation Office said it might be somewhat fewer than that.

So far, orders have been signed for just four that reduced their sentences to time served. In addition to Cleveland, who got a 29-month reduction, they include Paris Lamar Wilson, sentenced in 1997 on charges of conspiracy to distribute crack cocaine, possession and use of a firearm related to drug trafficking; Bobby Woods, sentenced in 2001 on charges of conspiracy and possession of cocaine base, and Steven Mitchell Gant, who pleaded guilty in 2008 to charges of conspiracy and possession of cocaine base, cocaine and ecstasy.

The orders give the Bureau of Prisons 10 days to release the inmates. Jeanne Cooney, a spokeswoman for the U.S. attorney's office in Minnesota, said under the law, the bureau gets time to notify victims in some cases or even local law enforcement.

The offenders will remain subject to post-prison "supervised release" even if, in effect, they served excess time under the new guidelines.

Wednesday, November 02, 2011

Ind. Decisions - Tax Court decides one today

In Jaklin Idris and Dariana Kamenova v. Marion County Assessor, a 7-page opinion in a case in which the pro se Petitioner provided the Clerk with four copies of a “Notice of Claim – Small Tax Case” (hereinafter, “Petition”) and two copies of a “Notice of Appearance” and then, on the same day, the Clerk, rather than the Petitioner, filed Petitioner’s Petition and Appearance and sent a Transmittal Letter to the Indiana Board and the Attorney General. Judge Wentworth concludes:

[Petitioner] Idris’s reliance on the Clerk as the means to effect service did not run afoul of statutory requirements for initiating an original tax appeal under Indiana Code § 6-1.1-15-5 because that statute recites no preference for any particular method of service. Moreover, while Idris’s method of service admittedly did not comply with Tax Court Rule 16(C), it was consistent with the spirit and purpose of the rule. Finally, the Court’s conclusion is consistent with its prior decisions that reasoned that the decisive inquiry for proper service is whether the documents to be served were timely mailed, not who mailed them. See Holsapple, 918 N.E.2d at 785; Indiana Model, 639 N.E.2d 695, 698 n.4. Therefore, the Court DENIES the Assessor’s Motion in its entirety.

Stage Collapse - "Will all state fair claims be paid?"

Carrie Ritchie of the Indianapolis Star has the story today. Some quotes:

The Indiana Attorney General's Office said Tuesday the state hasn't come up with a system for dividing $5 million -- the cap on state payouts -- among 90 claims submitted over the Aug. 13 stage rigging collapse at the Indiana State Fair. * * *

Attorney general spokesman Bryan Corbin said the state is still reviewing claims and declined to speculate when it would begin doling out cash.

"This is still a very fluid process," Corbin said. But attorneys say some people who submitted claims will inevitably walk away empty-handed.

The deadline to submit the claims was Tuesday, and the attorney general's office had received 90 by the end of the day. It could receive more via mail, and it will accept them as long as they were postmarked by Tuesday.

The 90 claims cite everything from death of loved ones and serious injuries to emotional distress. The attorney general's office says that families of people who died and those who were seriously injured will get priority.

By law, the state can't pay more than $5 million total for one tragedy, and it can't pay a single victim more than $700,000.

If the state pays the maximum to the families of the seven people who died, that will take up $4.9 million of the $5 million pot, said Kenneth Allen, an attorney for the families of three people who died.

"How do you then compensate someone who says he was emotionally distressed when you've got to compare it to a claim from someone who lost her spouse?" Allen said.

Allen has criticized the way the state has handled the case. He said that allowing the state to come up with a process to compensate the victims is like allowing a criminal to preside over his own trial.

Allen said he cases need to be reviewed by judges and juries, and he has filed a federal lawsuit challenging the state's caps on compensation. * * *

A charitable relief fund has already given more than $500,000 to some victims and still has a little less than $500,000 left. The deadline to submit claims to that fund is Nov. 14.

Attorneys also are looking at the liability of others involved in the concert, including the band and the company that provided the stage.

"There's not just one pocket here," said Karen Celestino-Horseman, who represents a stagehand who sustained back and head injuries in the collapse.

In fact, she said, victims should pay close attention to the conditions that go along with money the state doles out because the state could ask victims not to pursue further legal action.

"It's not just the money," she said, "it also deals with your legal rights.

In September of this year the ILB spent some time researching the legal ramifications of the last major catastrophe at the State Fair grounds, the 1963 Coliseum explosion. Here is the result:

The 1963 Coliseum Explosion, the end of sovereign immunity, and the enactment of the tort claims statute -- Part I

The 1963 Coliseum Explosion, the end of sovereign immunity, and the enactment of the tort claims statute -- Part II

My conclusion:

The ultimate consequence, seen when reading Parts I and II together, is that the tragedy at a state venue led to a mass settlement, but not before starting a sequence that led to the recognition by our Supreme Court in an unrelated case, two years later, that the State of Indiana is not immune from suit, that the Constitution presents no barrier, and that the State would have to bear the consequences, as do the units of local government. In response, in 1974 the General Assembly acted to cap the State's liability for any one occurrence at $5 million, via a tort claims law.

Law - Wisconsin House "passes bill giving homeowners more authority to use deadly force"

Madison - Homeowners using deadly force against intruders would get powerful legal protection, under a bill approved by the Assembly [House] late Tuesday. * * *

Under the bill, courts in most criminal and civil matters would presume that property owners using deadly force had acted reasonably against anyone unlawfully inside their residence, business or vehicle, whether they were armed or not. The proposal is sometimes known as "castle doctrine" legislation, a reference to the saying that one's home is one's castle. * * *

Milwaukee County District Attorney John Chisholm has said Wisconsin, like most states, doesn't need a castle doctrine because current law provides more than adequate protection for anyone legitimately acting in self-defense. Sheboygan County District Attorney Joe DeCecco said that strangers occasionally enter the wrong homes accidentally if they're confused or drunk.

"Shouldn't there be some minimal effort required to assess the situation or call police before firing?" DeCecco asked.

Republican Attorney General J.B. Van Hollen said he had not reviewed the particulars of the bill, but that he supported the general concept.

"Being a Second Amendment advocate, I have always been a proponent of some form of the castle doctrine," he said. "I'm a strong believer that law-abiding citizens can be trusted with firearms, know how and when to use them when they feel like they have to, and they should have the ability to protect themselves."

Under current law, a person can't seek to kill or wound someone unless he or she reasonably believes it's needed to prevent the same type of injury to himself or herself.

Supporters of the bill say that people in their homes or businesses don't necessarily have the time to check whether an intruder is trying to hurt them.

The proposed immunity under the castle doctrine legislation wouldn't apply to people who were using their home or other property for crimes such as drug dealing.

It also wouldn't shield a shooter who attacked someone who he or she knew or should have known was a police officer.

ILB: Indiana has a similar law, IC 35-41--3-2. It has been a part of the discussion of the Indiana Supreme Court's Barnes decision. Indiana's law does not have the police officer exception.

For an interesting pre-Barnes look at the Indiana "castle law," see this Oct. 1, 2008 ILB entry, quoting a story by Francesca Jarosz, then of the Indianapolis Star, headed "When deadly force is justified."

"U.S. Supreme Court Declines to Hear High School Free Speech Case in Burlington" was the headline to this long story yesterday in the Hartford Courant, reported by Edmund H. Mahony. Some quotes:

The U.S. Supreme Court Monday ended former Connecticut high school student Avery Doninger's First Amendment fight when it let stand a prior ruling that school administrators acted reasonably when they disciplined her for using a vulgar term to criticize faculty.

The justices Monday morning declined to hear an appeal from Doninger, a junior at Lewis Mills High School in Burlington in 2007 when she used an off-campus computer to post an Internet comment that criticized school administrators in the mistaken belief that they were canceling a musical event called Jamfest. * * *

Some groups, including educational lawyers, had hoped the Supreme Court would use Doninger to re-examine the limits of student speech, on and off campus, in the age of instant, mass communication on the Internet.

The question in the Doninger case was the balance between a student's right to free expression and the disruptive effect of such speech upon the educational process. * * *

The U.S. Supreme Court last took up the issue of student speech in a 1969 Iowa case known as Tinker. In that case, students wore black armbands to school to protest U.S. involvement in Vietnam.

In Tinker, the high court lifted discipline that school administrators in Iowa had imposed on the students there. The court said students have speech rights on campus as long as they don't disrupt the educational process.

The high court’s inaction Monday means the justices have never squarely addressed the parameters of off-campus, online student speech. So far, lower courts appear to be guided by a 1969 high court ruling saying student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.”

Courts - "Change in crack sentencing means early releases"

The disparity in sentences for crack versus powder had long been criticized as racially discriminatory because it disproportionately affected black defendants. The Fair Sentencing Act passed by Congress in 2010 and signed by President Obama reduced the disparity for future cases.

This summer the U.S. Sentencing Commission, which sets federal sentencing policy, decided to apply the act to inmates already serving time.

The commission estimates about 12,000 inmates could benefit overall. The effect of the change will largely be spread out over the next several years, with inmates getting an average of three years shaved off. But nearly 1,900 prisoners are estimated to be eligible for immediate release Tuesday.

It's not clear how many individuals will go free on the first day inmates are eligible.

Chris Burke, a spokesman for the Federal Bureau of Prisons, said Monday that officials had already received hundreds of orders for early release from judges and the number has been going up daily, "if not hourly." Prison officials have been given a grace period of several days to release certain inmates.

Ind. Decisions - "Purdue discloses student’s name to film company"

WEST LAFAYETTE (AP) — Purdue University has disclosed the name of a student to a California film company that makes adult videos after a federal magistrate refused a request to quash a subpoena to protect the student’s privacy.

Purdue spokeswoman Jeanne Norberg said Tuesday the university has provided the student’s name to Third Degree Films. The university disclosed the name after a ruling Oct. 6 by Magistrate Judge Andrew Rodovich, who said Third Degree Films’ right to judicial process outweighs the 19-year-old student’s right to remain anonymous.

Third Degree Films is seeking to learn the identities of more than 2,000 people it claims illegally downloaded copyrighted adult videos. The lawsuit seeks unspecified monetary damages.

The ILB has located the opinion, Third Degree Films v. Does, issued Oct. 6, 2011 by U.S. Magistrate Judge Andrew P. Rodovich. Some quotes:

The plaintiff, Third Degree Films, Inc., filed a complaint
in the Northern District of California against 2,010 unnamed Doe
defendants, alleging that the defendants obtained and distributed
an adult video, "Illegal Ass 2", without its consent in violation
of its copyright. Third Degree identified the defendants by
their internet protocol (IP) addresses. Third Degree filed an
application for early discovery so it could serve subpoenas on
internet service providers (ISPs) to determine the internet
subscriber names, addresses, and e-mail addresses associated with
the IP addresses listed in its complaint. Magistrate Judge
Howard Lloyd of the Northern District of California entered an
order permitting service of the subpoenas on the ISPs.

Third Degree served a subpoena on Purdue University, seeking
to compel disclosure of the name, address, telephone number, and
e-mail address of Doe 26, a 19 year old student enrolled at
Purdue University. On the date of the alleged copyright violation,
he resided in a college dormitory at Purdue. Doe 26's
roommate and other students used his router and Wi-Fi connection
for internet access.

Doe 26 opened this miscellaneous action for the purpose of
quashing the subpoena. Doe 26 argues that he has standing to
quash the subpoena because it seeks disclosure of personal identification information over which he has a personal and proprietary
interest, the information sought is privileged, production
of the information would cause him an undue burden, and the
information is not relevant to Third Degree’s case. Doe 26
further states that there is a high risk that someone else downloaded
the video because others accessed Doe 26's router and Wi-
Fi connection and could have used his IP address.

To date, none of the defendants have been identified, served
with process, or answered in the case pending in the Northern
District of California. * * *

A Doe defendant lacks standing to move to quash a subpoena
on the ground of undue burden when the subpoena is directed to
the ISP rather than to him. * * *

Doe 26 also argues that the subpoena should be quashed
because Doe 26 has a privacy interest in the information. Doe 26
has standing to assert his privacy interest in the requested
information. * * * However, Doe 26 has not demonstrated why
the requested information is privileged and not subject to
discovery. * * *

By providing Purdue with his identification and contact
information for the purpose of accessing the internet, Doe 26
relinquished any privacy interest he may have held in the information.
Doe 26 cannot assert a privacy interest over the information
he previously disclosed voluntarily. See First Time
Videos, 2011 WL 3498227 at *4. Third Degree’s request is limited
to the information Doe 26 would have provided Purdue to access
the internet, including his name, address, and phone number. The
information requested by the subpoena is therefore subject to
discovery and not shielded by privilege. * * *

Doe 26 has not established that his identity is
protected by the First Amendment. In weighing these factors, the
circumstances reflect that Third Degree’s right to judicial
process outweighs Doe 26's right to remain anonymous. See Sony
Music Entertainment, 326 F.Supp.2d at 567 (weighing factors in
favor of upholding subpoena). Third Degree has demonstrated that
its need for the information outweighs any privacy interest Doe
26 may retain over the information. Doe 26 has not shown that he
has any interest in the privacy of the information, that disclosure
of his identity is protected by the First Amendment, or that
the information is subject to any other privilege. Doe 26's only
alternative to quash the subpoena is to establish that the information
sought is irrelevant. * * *

Doe 26 has not demonstrated that the subpoena causes him an
undue burden, is protected from disclosure by privilege, or is
irrelevant to Third Degree’s complaint. For these reasons, the
Amended Motion to Quash Subpoena Served on Purdue University and
Memorandum of Authorities [DE 6] filed by the defendant, Doe 26,
on July 12, 2011, is DENIED. The Motion to Quash Subpoena [DE 1]
filed by the defendant, Doe 26, on July 7, 2011, and the Motion
to Quash Subpoena Served on Purdue University and Memorandum of
Authorities [DE 4] filed by Doe 26 on July 8, 2011, are DENIED AS
MOOT, and the Request for Oral Hearing [DE 5] filed by Doe 26 on
July 8, 2011, is DENIED.

Tuesday, November 01, 2011

Ind. Decisions - One Indiana decision today from 7th Circuit

The plaintiff, Rose Acre, the
nation’s second-largest producer of eggs, has along with
other egg producers been charged in a number of class
action suits with conspiring to fix the price of eggs, in
violation of section 1 of the Sherman Act. (It has been
embroiled in antitrust litigation before, perhaps because it
has been so successful.) * * * Rose Acre asked its
liability insurers to defend it in the class action suits,
arguing that the complaints sought damages for what
Rose Acre’s policies call “personal and advertising injury.” * * *

The insurer (for remember we’re pretending there’s just
one) refused to defend Rose Acre, on the ground that
the antitrust complaint alleged nothing that could be
regarded as “personal and advertising injury.” This suit,
a diversity suit governed by Indiana law, followed. The
district court granted summary judgment in favor of the
insurer.

The insurance policy defines “personal and advertising
injury” as “injury . . . arising out of one or more of the
following offenses,” and a list of torts follows that
includes “the use of another’s advertising idea in your
‘advertisement.’ ” We’ll call this coverage “advertising
injury.”

Rose Acre tries to connect its advertising to the
antitrust suit in the following convoluted manner. * * *

But this suit would fail even if one could tease out of
the antitrust complaint a charge that Rose Acre’s advertising
was in furtherance of the alleged antitrust
conspiracy. Coverage of liability for an “offense” defined
as “the use of another’s advertising idea” in one’s own
advertising cannot extend to using another’s advertising
idea with that other’s consent. Suppose Rose Acre published
on its website the following ad, written by its
director of marketing: “We are socialists, we abhor
profits, and we sell all our eggs at cost.” Although the
ad might be thought in furtherance of the antitrust conspiracy,
any antitrust liability that it created would not
be “advertising injury” because the company’s marketing
director is not “another.” What difference could it
make if instead the ad had been written by Rose Acre’s
advertising agency?

Antitrust liability, moreover, is a major business risk,
especially for one of the largest companies in a major
market. It is hardly likely that parties to an insurance
contract would seek to cover such a serious risk indirectly
through an “advertising injury” provision aimed at
misappropriation and other intellectual-property torts. * * *

We note finally that the Eleventh Circuit, in a case
decided a week before the oral argument in this case,
rejected an identical claim by a firm represented by
Rose Acre’s counsel in this case. Trailer Bridge, Inc. v.
Illinois National Ins. Co., 2011 WL 4346579 (11th Cir. Sept.
19, 2011) (per curiam).

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

In this case, neither the warrant nor the affidavit in support thereof described the vehicles to be searched; detailed the vehicles' connection to any criminal activity; or indicated the specific locations of the vehicles with any specificity to be searched. Given the vague language of the warrant, which clearly gave officers discretion in determining which vehicles to search, we find the portion of the warrant allowing for the search of vehicles to be invalid. Accordingly, all evidence seized pursuant to the invalid language, but only pursuant to the invalid language, must be suppressed. * * *

Given that the officers unlawfully stopped Lee, we cannot say that a basis exists for admitting Lee's resulting statements to officers. We therefore find that the trial court abused its discretion in admitting Lee's statements, made during and after the stop, to the officers.

2. Sufficiency of the Evidence * * *

Here, the State did not provide evidence of additional circumstances whereby the trier-of-fact could infer Lee knew of the presence of the contraband and had the ability to control it. We therefore reverse Lee's conviction. Reversed.

Employer P.M.T. appeals the Review Board of the Indiana Department of Workforce Development's (“Review Board”) award of unemployment insurance benefits to employee L.A. P.M.T. argues that L.A.'s termination was for just cause because P.M.T.'s attendance policy is not unreasonable and L.A. knowingly violated the policy. We conclude that P.M.T.'s attendance policy was unreasonable because it neither provided exemptions for verified emergencies nor protected P.M.T. employees. We also conclude that L.A.'s absences were the result of circumstances beyond her control. Finding that the Review Board properly awarded unemployment insurance benefits to L.A., we affirm.

Updating yesterday's ILB entry, David G. Savage's story today in the LA Times is headed "Supreme Court hesitates to extend rights on plea deals: Justices show reluctance to reopen the cases of criminal defendants who missed out on good plea deals because of their lawyers' mistakes."NPR's Nina Totenberg has this report. A quote:

The justices seemed a bit more conflicted by the second case, involving Missouri college student Galin Frye, who was charged with a felony for repeatedly driving while his license was revoked. Prosecutors wrote to his lawyer offering to reduce the charge to a misdemeanor if Frye would plead guilty and agree to serve 90 days in jail.

But the lawyer never passed along the offer to Frye, who later pleaded guilty, with no conditions, and was sentenced to three years in prison. He claims now that he was denied the effective assistance of counsel guaranteed by the Constitution. But at the Supreme Court on Monday, Missouri Attorney General Chris Koster told the justices that the Constitution does not provide for a right to a plea bargain.

Koster said that if the courts begin to second-guess plea bargain offers, it would jeopardize "finality" of the entire criminal justice system, a system that in fact resolves more than 90 percent of the criminal cases in the country not by trials, but by plea bargains.

Supporting the state's argument, Assistant U.S. Solicitor General Anthony Yang contended that the Constitution only guarantees a right to a fair trial, not a fair plea bargain.

Cracking down on courtroom networking: Judges try to control juries in the age of Facebook

Ameet Sachdev, Chicago Tribune law reporter, had this story Oct. 30th. Some quotes from the long story:

Judges have long instructed jurors not to talk about their jury service with anyone, including fellow jurors, and to avoid reading newspaper stories about trials. The fear is that jurors might develop a bias from information that's not been admitted in court. The right to an impartial jury is one of the principles of the American justice system.

But that right is threatened in a digital age when people post personal thoughts onto the Internet, whether on a blog or social networking sites such as Facebook and Twitter. It's also become second nature to satisfy curiosities by searching for immediate answers on the Internet.

"Judges used to tell jurors to not visit a crime scene on your own," said Eric Robinson, deputy director of the Reynolds National Center for Courts and Media. "Now with Google Street View, you just punch in the address and there it is."

In an Illinois case, the Tribune story continues, a blogger/juror posted six entries about her jury service during the trial:

One of Metra's attorneys at the Chicago law firm of Daley Mohan Groble discovered Bradshaw's blog, only after the jury had awarded Eskew's widow $4.75 million.

Metra asked Cook County Circuit Judge Donald Suriano for a new trial, arguing that her blog contaminated jury deliberations.

But the judge decided her blogging was harmless.

According to court papers, Suriano found that her blog established that Bradshaw was aware of her responsibilities as a juror. In her blog she maintained some level of secrecy about the proceedings by not identifying the plaintiff, the defendant, witnesses, attorneys and the judge until after a verdict had been rendered Aug. 18.

Stage collapse - Today is last day to file for statutory Tort Claim Fund

"Deadline arrives for state fair victims" is today, Tuesday Nov. 1st. WISH has a brief story here:

The state’s Tort Claim Fund was created to settle claims and lawsuits against the state in connection with the Aug. 13 incident that killed seven people and injured dozens of others.

The Tort Claim Fund is one of two avenues victims have to get relief money to pay for the cost of their injuries. So far, 76 tort claims have been filed. The state has a $5 million cap for payouts related to the collapse, and an individual cap of $700,000 per person.

A second avenue victims have is receiving money from the State Fair Relief Fund. That fund is comprised of money donated by Hoosiers and others interested in helping the victims. Under the guidelines for distribution of the relief fund, victims must have died or spent at least one day in a hospital in order for families or victims to receive money.

Victims can apply to receive money from both funds. The application deadline for the relief fund is Nov. 14.

Claimants legally have 270 days to file a tort claim notice with the State, however the Attorney General's Office is informally requesting claimants file the customized forms by November 1 in order to expedite financial assistance to victims and families of victims who choose to participate. Valid claims can be filed after November 1, but funding will likely be exhausted and not available to settle those claims after that date.

Sandra Chapman of WTHR 13 Indy had a story last evening headed "Some State Fair victims face staggering medical costs." Some quotes, but you might want to watch the video or read the full story:

Time is running out for victims of the stage collapse to get their share of a $5 million state fund.

But as the deadline draws near, attorneys for a local teen paralyzed in the State Fair tragedy warn that the state is not prepared to meet victims' needs. * * *

Now 13 Investigates has learned the community's generosity from the State Fair Relief Fund is being counted against [Bradley Humphrey] by the federal government. His mother confirms he's being denied Social Security Benefits until the $25,000 gift is gone.

"Social Security is a federal program, and I think this just underscores the responsibility the state has to step up and not just say we'll give you this inadequate limit to divide amongst folks," attorney Scott Montross told 13 Investigates.

Scott Montross is Bradley's attorney. He says both the relief fund and the state's $5 million liability fund are flawed.

Montross can't do much about the feds and the community relief fund. But with just one day left for State Fair victims to file pre-lawsuit paperwork with the Attorney General's office, Montross wants the state to reconsider its $5 million cap for the families of those who died, and kids like Bradley who'll never be the same.

"It's woefully inadequate," Montross said. "This really is in the hands of the legislature and the governor to just step up. This is just about doing what's right for these people."

A group of about 25 attorneys are trying to work with the state on dealing with victims' claims. They're suggesting that perhaps a panel of judges or arbitrators review the claims and come up with a more accurate payout from the state on this one tragedy.